JUDGMENT
Cusack (Respondent) v London Borough of Harrow
(Appellant)
before
Lord Neuberger, President
Lord Mance
Lord Sumption
Lord Carnwath
Lord Hughes
JUDGMENT GIVEN ON
19 June 2013
Heard on 23 April 2013
Appellant Respondent
Stephen Sauvain QC Patrick Green QC
Tom Weekes Noel Dilworth
(Instructed by Sharpe (Instructed by Patrick J
Pritchard) Cusack & Co)
LORD CARNWATH (with whom Lord Sumption and Lord Hughes agree)
Introduction
1. 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.
2. 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.
3. 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.
4. 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.
Page 2
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.
5. 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.
Statutory provisions
6. I turn to the relevant sections. Section 66 (in a group of sections headed
“Safety provisions”) provides:
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“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.”
7. Section 80 (in a group headed “Fences and boundaries”) provides:
“Power to fence highways
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(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
Page 5
2 of the Restriction of Ribbon Development Act
1935…”
8. 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
9. 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).
10. 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. Although they may overlap, they
are provided for different purposes and apply in different situations. Where the
council has two alternative statutory methods of achieving the same objective, it is
entitled to adopt the one which imposes the least burden on the public purse
(Westminster Bank Ltd v Minister of Housing and Local Government [1971] AC
Page 6
508, 530). Whether compensation is payable depends on the particular statutory
provision.
11. Mr Green, as I understood his arguments in this court, relied less on the
general/specific principle as such, than on a purposive interpretation of the
statutory provisions in their context. Although he put his arguments in a number of
ways, the common theme was that the broad, unfettered power asserted by the
council, without the protection of compensation, was irreconcilable with the
general scheme of the Act and the pattern of other comparable provisions. In
particular the council’s construction of section 80 would enable it to override the
safeguards provided in other sections. In particular, it would deprive section 66(2)
of most of its apparent content, and, if applied to footpaths and bridleways, would
enable it to bypass the prohibition on the use of section 66 to obstruct a private
access (section 66(3)(5)).
12. With respect to the Court of Appeal, I am unable to see how the
general/specific principle assists in this case. I see no reason to regard either power
as more specific or less general than the other. It is true that section 66(2) is
directed to a specific purpose (“safeguarding persons using the highway”), but the
powers are defined in relatively wide terms, not necessarily related to private
accesses. The powers in section 80 are expressed in narrower terms, related
specifically to the prevention of access to an existing or future highway. Although
there is no express mention of safety as a purpose, it is implicit that the section
must be used for purposes related to those of the Act, which of course include, but
are not necessarily confined to, highway safety. Before considering Mr Green’s
more general submissions it is necessary to say something about the legislative
background of the relevant provisions.
Legislative history
Section 80
13. It is of interest, though hardly unexpected, that highway safety was one of
the purposes referred to when the predecessor of section 80 was first introduced as
part of a statute restricting ribbon development (Restriction of Ribbon
Development Act 1935, section 4). Mr Sauvain’s researches have revealed that the
then Minister (Mr Hore-Belisha MP – better known perhaps for his “beacons”)
described the objects of the new powers as being –
“to minimise the present dangers to life and limb which result from
the erection of houses and buildings with their own means of access
Page 7
at innumerable and ill-considered points along the road, to remove
the obstruction to the free passage of traffic and to prevent the
further impairment of the setting in which the roads lie.” (Hansard
(HC Debates), 29 July 1935, col 2335)
14. The 1935 Act imposed a general restriction on the construction, formation
or laying out “without the consent of the highway authority” of any means of
access to or from various categories of road, including classified roads (sections 1,
2). Where such restrictions were in force on any road, section 4 enabled the
highway authority to erect fences or posts for the purpose of preventing access
except at places permitted by them. The section contained exceptions to prevent
interference with agricultural fences or gates, or obstruction of public rights of
way, and also to prevent obstruction of any means of access formed either before
the date on which the restrictions were brought into force, or with the consent of
the highway authority thereafter. The Act (section 9) contained provision for
compensation for diminution in value caused, not by the erection of the fences as
such, but by the prohibition on the formation of new accesses resulting from the
restrictions imposed by sections 1 and 2.
15. The main provisions of the 1935 Act (including sections 1, 2 and 9) were
repealed by the Town and Country Planning Act 1947, at the same time as the
introduction of universal planning control, which has continued under successive
enactments to the present day (now the Town and Country Planning Act 1990).
The restrictions on ribbon development were in effect subsumed into the general
prohibition of “development” other than with planning permission. For the
purposes of the planning Acts, the “formation or laying out of means of access to
highways” was included in the definition of “engineering operations” and was thus
treated as “development” requiring planning permission (see the 1990 Act,
sections 55(1), 336(1)). With very limited exceptions, not material to this case, no
compensation was payable for refusal of permission under the new statutory
scheme.
16. Section 4 of the 1935 Act was retained following the repeal of the
substantive provisions of that Act (including the compensation provision), but was
amended by section 113 of, and Schedule 8 to, the 1947 Act to take account of the
new legislative scheme. The amended section retained the first two exceptions
(agricultural fences or gates, and public rights of way) but for the remainder there
was substituted a prohibition in terms related to the 1947 Act. It prohibited use of
the section so as to 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 1947, or which was constructed,
Page 8
formed or laid out before the appointed day within the meaning of
the said Act, unless it was constructed, formed or laid out in
contravention of restrictions in force under the foregoing restrictions
of this Act.”
Subject to minor drafting changes, this is the form in which the provision was
carried into the Highways Act 1959 (section 85), and now section 80 of the
Highways Act 1980.
Section 66
17. Section 66(2) has a very different history, dating back to the Public Health
Act 1875. Section 149 included a power for urban authorities to “place and keep in
repair fences and posts for the safety of foot passengers”. That was expanded to
something more like its present form in section 39 of the Public Health Acts
Amendment Act 1890 (read as one with the 1875 Act: see section 2). The 1875
Act contained a general provision giving compensation for damage caused by the
exercise of powers under the Act (section 308).
18. These provisions were replaced by section 67(2) of the Highways Act 1959.
By contrast section 67(1) of the 1959 Act (duty to provide footways) reproduced
the effect of a more recent enactment, section 58 of the Road Traffic Act 1930.
Section 67(1) and (2) were re-enacted as section 66(1) and (2) of the 1980 Act.
This different history probably explains why the right to compensation in section
66(8) extends to the effects of works under section 66(2), but not of those under
section 66(1).
19. As this account illustrates, the current Highways Act 1980 is the result of a
complex evolutionary history extending over more than 130 years. Against this
background, and in spite of the efforts of the consolidating draftsmen, it is not
perhaps surprising that it contains a varied miscellany of sometimes overlapping
and not always consistent statutory powers. The Ching Garage case shows that the
present council’s confusion as to the appropriate source of the necessary powers is
not without precedent. In that case the council’s arguments went through a number
of “vicissitudes” (see p 473), before they settled on the provisions on which they
lost at trial. By the time of the appeal these had been overtaken by the coming into
force of section 67(2) of the 1959 Act, which was substituted by amendment of
their pleadings. Having satisfied themselves that the proposed works fell within
that provision, their Lordships were not concerned by the possible overlap with
other provisions.
Page 9
Planning immunity
20. It is common ground that the use of the property as an office, although in
breach of planning control since 1976, has become immune from enforcement.
There is no precise finding as to when the occupants of number 66 began to use the
forecourt for parking with direct access to the road, nor what works were carried
out at that time. Judge McDowall accepted that by the time Mr Cusack acquired
the property (1969) it was in its present state, without a front wall or fence, and
further that at some time thereafter the pavement was lowered at that point. He
was unwilling to find that it began before 1948. The commencement of use of the
access, if incidental to the office use of the property, would not itself have
involved a material change of use requiring planning permission. But when works
were carried out amounting to “formation or laying out of” a means of access, they
would have amounted to an engineering operation and thus development within
the statutory definition. That also would have involved a breach of planning
control, but again would long since have become immune from enforcement
action.
21. Section 80 provides specific protection for accesses formed since 1947 if
authorised by planning permission. The protection does not in terms extend to use
of accesses which have become immune from enforcement under the planning
Acts.
22. In that respect planning law has moved on since 1947. Immunity and its
consequences are now governed by amendments made to the 1990 Act by the
Planning and Compensation Act 1991, implementing recommendations made in
my own report on planning enforcement (“Enforcing Planning Control” (HMSO
1989)). Among my recommendations was that a development which had become
immune from enforcement should “be put on the same footing as a permitted use”,
and that this should be done by treating it as subject to deemed planning
permission. I was concerned that the “limbo state” described as “unlawful but
immune” was “confusing to all but specialists” and could create difficulties in
other areas of the law, including that of compensation for acquisition of land
(under the Land Compensation Act 1961, section 5) (see report pp 69-73).
23. Those recommendations were given effect by a new section 191 of the 1990
Act (“Certificates of lawfulness of existing use or development”). Section 191(2)
provides:
“For the purposes of this Act uses and operations are lawful at any
time if –
Page 10
(a) no enforcement action may then be taken in respect
of them (whether because they did not involve
development or require planning permission or because
the time for enforcement action has expired or for any
other reason); and
(b) they do not constitute a contravention of any of the
requirements of any enforcement notice then in force.”
The section enables application to be made to the local planning authority for a
certificate to that effect. It further provides:
“(6) The lawfulness of any use, operations or other matter for which
a certificate is in force under this section shall be conclusively
presumed.
(7) A certificate under this section in respect of any use shall also
have effect, for the purposes of the following enactments, as if it
were a grant of planning permission –
(a) section 3(3) of the Caravan Sites and Control of
Development Act 1960;
(b) section 5(2) of the Control of Pollution Act 1974;
and
(c) section 36(2)(a) of the Environmental Protection
Act 1990.”
24. It is to be noted that, apart from those three specific cases, the draftsman did
not in terms adopt my proposal that there should be a deemed planning permission
whenever development had become immune from enforcement. On the other hand,
under subsection (2) “lawfulness” as such for the purposes of the Act does not
depend on the issue of a certificate, which is relevant only as evidence of that
status. Nor is lawfulness limited to the three categories for which there is deemed
planning permission. As Chadwick LJ explained in Epping Forest District Council
v Philcox [2002] Env LR 46, paras 28-30, features common to those three statutes
are that they involve regulatory regimes which prevent an occupier of land from
using that land for the specified purpose unless he is the holder of a licence; that
the regimes are underpinned by criminal sanctions; and that no licence can be
Page 11
granted unless at that time the use is authorised by planning permission. In those
cases the fact that the use is “lawful” would not be enough. There is no indication,
however, that the specific provision for those three categories was intended to
detract from the generality of the proposition that immune uses must now be
regarded as “lawful” for all planning purposes.
25. Lawful for planning purposes might not necessarily be the same as lawful
for the purposes of the Highways Act 1980. However, as has been seen, the effect
of the 1947 Act was to substitute the general prohibition on development under the
planning Acts for the previous more specific restrictions under highways
legislation. Apart from planning control, we have not been referred to any other
provisions in highways legislation in force since 1947, which would have
precluded Mr Cusack from relying on his common law right of access to the
highway.
Interpretation of section 80
26. Consideration of the legislative history does not in my view detract from the
natural meaning of section 80 as it appears in the 1980 Act. It may be of some
interest in explaining why the specific provision for compensation in the 1935 Act
was not retained, following the introduction of general planning control, including
control over new accesses. As far as concerned Mr Cusack’s property, this had the
effect that after the 1947 Act any prospective expectation of creating a direct
access to the road was subject to the powers of the highway authority, at any time
and without compensation, to prevent its use for highway reasons, unless planning
permission was first obtained.
27. In my view, apart from the Human Rights Act 1998, Mr Sauvain is right in
his submission that the council is entitled to rely on the clear words of section 80
for the power they seek. There is no express or implied restriction on its use. On
the basis of the pre-1998 Act authorities, the fact that section 66(2) may confer an
alternative power to achieve the same object, which is subject to compensation, is
beside the point. That is clear in particular from the Westminster Bank case (see
above). There also the legislation provided two different ways of achieving the
council’s objective, one under the planning Acts and the other under the Highways
Act, only the latter involving compensation. The authority was entitled to rely on
the former.
28. Lord Reid (giving the majority speech) said:
Page 12
“Here the authority did not act in excess of power in deciding to
proceed by way of refusal of planning permission rather than by way
of prescribing an improvement line. Did it then act in abuse of
power? I do not think so.
Parliament has chosen to set up two different ways of preventing
development which would interfere with schemes for street
widening. It must have been aware that one involved paying
compensation but the other did not. Nevertheless it expressed no
preference, and imposed no limit on the use of either. No doubt there
might be special circumstances which make it unreasonable or an
abuse of power to use one of these methods but here there were
none.” ([1971] AC 508, 530)
The passage (in the final sentence) also provides an answer to Mr Green’s concern
that the power might be abused in particular cases, for example, to override
specific prohibitions in section 66. Judicial review is not excluded in such
circumstances.
29. Mr Green sought to distinguish that case by reference to the speech of
Viscount Dilhorne. He had referred to section 220 of the Town and Country
Planning Act 1962, which provided “for the avoidance of doubt” that the powers
under that Act were exercisable notwithstanding provision in any other enactment
for regulating development. As Mr Green observed, there is no equivalent to that
in section 80. However, Viscount Dilhorne’s reliance on that section was not
reflected in the comments of the majority speech, which were expressed in general
terms.
30. For these reasons, the council is in my view entitled to succeed, unless
some additional limitation on their powers can be derived from the Human Rights
Act 1998. To that question I now turn.
Human Rights Act 1998
31. In this part of the case, Mr Green relies on article 1 of the First Protocol to
the European Convention on Human Rights (“A1P1”), which provides:
“Every natural or legal person is entitled to the peaceful enjoyment
of his possessions. No one shall be deprived of his possessions
except in the public interest and subject to the conditions provided
for by law…
Page 13
The preceding provisions shall not, however, in any way impair the
right of a State to enforce such laws as it deems necessary to control
the use of property in accordance with the general interest or to
secure the payment of taxes or other contributions or penalties.”
32. In the domestic context A1P1 is given effect by two provisions of the
Human Rights Act (“HRA”). First, section 3 deals with the duty of the court when
interpreting legislation. It requires that “so far as it is possible to do so” legislation
must be read and given effect to in a way which is compatible with the Convention
rights. Secondly, section 6 deals with acts of public authorities. It provides so far
as material:
“(1) It is unlawful for a public authority to act in a way which is
incompatible with a Convention right.
(2) Subsection (1) does not apply to an act if—
(a) as the result of one or more provisions of primary
legislation, the authority could not have acted
differently; or
(b) in the case of one or more provisions of, or made
under, primary legislation which cannot be read or
given effect in a way which is compatible with the
Convention rights, the authority was acting so as to
give effect to or enforce those provisions.”
33. Three questions therefore arise:
i) Is the closure of Mr Cusack’s access without compensation under
section 80 compatible with A1P1?
ii) If not, (under HRA section 3) is it possible to read section 80 in such
a way as to make it compatible?
iii) Alternatively, (under HRA section 6(2)(a)) could the authority have
avoided the breach by acting differently?
Page 14
34. Mr Green submits that use of section 80 to deprive Mr Cusack of vehicular
access to his own property and the right to park on his own hard-standing, without
any compensation, would be a breach of A1P1, which can be avoided by use of
section 66(2) to achieve the same end.
35. The effect of the Strasbourg caselaw under that article, dating from the
leading case of Sporrong and Lönnroth v Sweden (1982) 5 EHRR 35, was
summarised by the Grand Chamber in Depalle v France (2010) 54 EHRR 535,
559:
“The Court reiterates that, according to its case-law, Article 1 of
Protocol No 1, which guarantees in substance the right of property,
comprises three distinct rules (see, inter alia, James v United
Kingdom (1986) 8 EHRR 123, para 37): the first, which is expressed
in the first sentence of the first paragraph and is of a general nature,
lays down the principle of peaceful enjoyment of property. The
second rule, in the second sentence of the same paragraph, covers
deprivation of possessions and subjects it to certain conditions. The
third, contained in the second paragraph, recognises that the
Contracting States are entitled, amongst other things, to control the
use of property in accordance with the general interest. The second
and third rules, which are concerned with particular instances of
interference with the right to peaceful enjoyment of property, are to
be construed in the light of the general principle laid down in the
first rule (see Bruncrona v Finland (2004) 41 EHRR 592, paras 65-
69 and Broniowski v Poland (2004) 40 EHRR 495, para 134).
Regarding whether or not there has been an interference, the Court
reiterates that, in determining whether there has been a deprivation
of possessions within the second ‘rule’, it is necessary not only to
consider whether there has been a formal taking or expropriation of
property but to look behind the appearances and investigate the
realities of the situation complained of. Since the Convention is
intended to guarantee rights that are ‘practical and effective’, it has
to be ascertained whether the situation amounted to a de facto
expropriation (see Brumărescu v Romania (1999) 33 EHRR 862,
para 76 and Sporrong and Lönnroth v Sweden (1982) 5 EHRR 35,
paras 63 and 69-74). ”
As that passage makes clear, there is a material distinction between the second
rule, relating to deprivation of possessions, and the third (the second paragraph of
the article) relating to control of the use of property.
Page 15
36. Mr Green’s primary submission is that removing Mr Cusack’s common law
right of access to the highway is deprivation of a possession within the second
rule. The significance of that characterization, he says, is that where there is a
deprivation of property absence of a right to compensation will only be justified in
exceptional circumstances (James v UK (1986) 8 EHRR 123, para 54).
Alternatively, if deprivation of a frontager’s right of access is characterised as a
control of his property rights, albeit lawful and in the general interest, the council
has not discharged its onus of showing the proportionality of the interference.
37. I say at once that I see no basis for his reliance on the second rule. Mr
Cusack has not been deprived of any property. Mr Green was unable to point us to
any support in the Strasbourg cases for treating a restriction on the form of access
as a deprivation of a possession under that rule. On the other hand, as Mr Sauvain
concedes, it falls clearly within the third rule as a control of his property.
Accordingly, it is in that context that its compatibility with the Convention right
must be considered.
38. Mr Green referred us to the decision in Chassagnou v France (1999) 29
EHRR 615, in which it was held that a law effecting the compulsory transfer to a
municipal association of hunting rights over the applicant’s land was a
“disproportionate burden” and thus a breach of the second paragraph of article 1.
Although it was intended that he would be compensated by the grant of a
concomitant right to hunt over other land, this was of no value to him since he
disapproved of hunting on ethical grounds (see paras 82-85). In my view, the
subject-matter of that case was so far from the present that it is of little assistance,
other possibly than as an illustration of the width of the principle.
39. Closer to the present context is the decision in Bugajny v Poland
(Application No 22531/05) (unreported) given 6 November 2007, which was
considered and applied recently by the Court of Appeal in Thomas v Bridgend
County Borough Council [2012] QB 512. In my leading judgment I commented on
the guidance to be derived from that and other cases since Sporrong:
“31. Later cases (see eg Bugajny v Poland (Application No
22531/05) (unreported) given 6 November 2007, para 56 and
following) have given further guidance on the practical application
of article 1 to individual cases. First, the three rules are not ‘distinct
in the sense of being unconnected’; the second and third rules are to
be ‘construed in the light of the general principle enunciated in the
first rule’. Secondly, although not spelt out in the wording of the
article, claims under any of the three rules need to be examined
under four heads:
Page 16
(i) whether there was an interference with the peaceful
enjoyment of ‘possessions’;
(ii) whether the interference was ‘in the general
interest’;
(iii) whether the interference was ‘provided for by
law’; and
(iv) proportionality of the interference.
…
49. The cases show that the issue of proportionality can be
expanded into the following question:
‘whether the interference with the applicants’ right to
peaceful enjoyment of their possessions struck the
requisite fair balance between the demands of the
general interest of the public and the requirements of
the protection of the individual’s fundamental rights, or
whether it imposed a disproportionate and excessive
burden on them.’ (Bugajny v Poland 6 November
2007, para 67).”
40. In Bugajny itself certain plots in a development area had been designated as
“internal roads”, which were in due course built and opened to the public. The
developers sought to transfer ownership to the council in return for compensation,
under a statute by which “public roads” were required to be expropriated subject to
compensation. This request was rejected on the grounds that, not having been
provided for in the local land development plan, they did not belong to the
category of “public roads”. An application to the Strasbourg court alleging a
breach of A1P1 succeeded. The requirement to accept the public use of the roads
was an interference with the peaceful enjoyment of their possessions within A1P1.
Although it met the requirements of being lawful and in the general interest, it was
not proportionate.
41. The court recognised that “in the area of land development and town
planning” contracting states enjoyed “a wide margin of appreciation in order to
implement their policies”; but it was for the court to determine “whether the
Page 17
requisite balance was maintained in a manner consonant with the applicant’s right
of property” (para 68). To explain how it approached that task, it is necessary to
quote from the judgment at some length:
“… [The roads] currently serve both the general public and the
housing estate which the applicants developed and are open both to
public and private transport of all kinds… Given that the entire area
of the housing estate covers nine hectares which were divided into as
many as thirty-six plots of land designated for the construction
purposes, it is reasonable to accept that a considerable number of
people can be said to use these roads. It has not been shown or even
argued that the access to the estate or the use of these roads is
restricted or limited in any way. The situation examined in the
present case must therefore be distinguished from that of ‘fenced’
housing estates to which the public access is restricted by a decision
of its inhabitants.
The only way in which the land in question can now be used is as
roads. The applicants are also currently obliged to bear the costs of
their maintenance. The Court emphasises that the burden which the
applicants were made to bear is not limited in time in any way.
The Court observes that one of the arguments on which the
authorities relied when refusing to expropriate the applicants’
property was that the roads to be constructed on the estate had not
been included in the local land development plan. However, it
reiterates that it was not in dispute that the decision on the division
could be issued only when the division plan submitted by the owners
was compatible with the land development plan. The Court considers
that by adopting such an approach the authorities could effectively
evade the obligation to build and maintain roads other than major
thoroughfares provided for in the plans and shift this obligation onto
individual owners.
The Court finally notes that the Poznan Regional Court expressed
serious doubts as to whether the applicants’ situation was compatible
with the requirements of article 1 of Protocol No 1. This court
expressly compared the applicants’ position to that of the applicant in
the Papamichalopoulos v Greece case [(1993) 16 EHRR 440] and
considered it to be ‘even worse’. In the Court’s view, the applicants’
situation in the present case was less serious than the situation
examined in the Papamichalopoulos judgment, because they were
not divested of all possibility of using their property. Nonetheless,
Page 18
such a critical assessment on the part of the domestic court is
certainly, in the Court’s view, of relevance for the overall assessment
of the case.
Having regard to the above considerations, the Court is of the view
that a fair balance was not struck between the competing general and
individual interests and that the applicants had to bear an excessive
individual burden.” (paras 70-74)
42. In the Thomas case the factual circumstances were very different, but a
similar approach was applied. The case concerned the exclusion of the right to
compensation for the effects of road works where the opening of the road was
delayed beyond a fixed time-limit, even if the delay was attributable to default by
the authority’s contractor. I noted that, while A1P1 does not impose any general
requirement for compensation, its absence may be relevant to the issue of
proportionality (para 53):
“In deciding whether the proportionality test is satisfied, the court is
entitled to treat the compensation rights created by the 1973 Act as
part of the ‘fair balance’ thought necessary by Parliament. Where a
class of potential claimants is excluded from those rights, the court is
entitled to inquire into the reasons for the exclusion, and ask whether
it serves any legitimate purpose, or leads to results ‘so anomalous as
to render the legislation unacceptable’: J A Pye (Oxford) Ltd v
United Kingdom (2007) 46 EHRR 1083, para 83.”
43. On the particular case I said:
“Whatever its purpose, the operation of the provision in
circumstances such as the present is truly bizarre. The diligent roadbuilder who completes his project in time is penalised by liability for
compensation; the inefficient road-builder is rewarded by evading
liability altogether. For the householders there is a double
disadvantage. Not only do they suffer the inconvenience and
disturbance of a protracted maintenance period, but they lose their
right to any compensation for the effects of the use which they are
already experiencing. This result is in my view so absurd that it
undermines the fairness of the ‘balance’ intended by Parliament, and
necessary to satisfy article 1.
Page 19
In this respect it is my view a stronger case than Bugajny… The
nature of the interference was very different. But at the heart of the
court’s reasoning on proportionality, as I read the decision, was the
arbitrary distinction drawn by the domestic law between ‘public
roads’ as designated in the development plan, and ‘internal roads’
which were no less public in practice, and no less appropriate for
adoption by the authorities. The ‘fairness’ of the balance between
public and private interests was destroyed by the opportunity so
given to the authorities to evade the responsibility otherwise imposed
on them. At least there the state was able to raise an arguable case
for distinguishing between the two categories of road. Here, instead,
the section produces a result which is directly contrary to that which
common sense would dictate.” (paras 56-57)
44. As is perhaps implicit in that passage, I regard Bugajny as a somewhat
extreme example of the use of A1P1 to override the decisions of the national
authorities. The court effectively substituted its own views for that of the national
courts as to what was a public road under national law. However, it is relevant that
the present case, like Bugajny, falls in the general field of land development and
town planning, in which the state is allowed a wide margin of appreciation. As that
case also shows, the issue of proportionality is not hard-edged, but requires a broad
judgment as to where the “fair balance” lies. It is not in my view confined to cases
of the “truly bizarre” (as in Thomas), or what might be termed irrationality or
“Wednesbury unreasonableness” in domestic law.
45. In this respect, in my view, the Convention may require some qualification
to the narrow approach established by earlier authorities, such as Westminster
Bank. The issue is not simply whether the council’s action is an abuse of its
powers under section 80, but whether in that action “a fair balance was … struck
between the competing general and individual interests.” On the other hand, there
is no challenge to the compatibility of section 80 as such. Accordingly, the mere
fact that another statutory route was available involving compensation does not in
itself lead to the conclusion that reliance on section 80 was disproportionate.
46. One argument on the council’s side might have been that the requirement
for specific planning permission under section 80 is designed to ensure that there
has been an opportunity for highway considerations to be taken into account. That,
however, does not explain why the exception can be overridden by use of a
different power, the only material difference being liability to compensation.
Further the inclusion of an exception for pre-1947 uses, regardless of whether they
have been assessed on safety grounds, shows that the exclusion is related at least
as much to protection of accrued rights as to safety considerations.
Page 20
47. It was also suggested in the course of argument that frontagers potentially at
risk under section 80 could have protected themselves by seeking retrospective
planning permission. However, it is at least doubtful whether that would be a
proper use of the council’s power, in relation to a use which is already lawful for
planning purposes, and where the sole object is not a planning purpose, but to
secure a right to compensation under a different legislative scheme.
48. Mr Green’s strongest argument in my view rests on the changes made by
the 1991 Act. Previously, the access, though immune from enforcement under the
planning Acts, was not “lawful”, and therefore, it could be said, should not be the
subject of compensation (cf the Land Compensation Act 1973, section 5(4)). As he
submits, that position has now changed. The access is to be regarded as “lawful”
for planning purposes, and therefore, he says, there is no good reason for treating it
less favourably than a pre-1948 use.
49. The question must however be answered principally by reference to the
balance drawn by section 80 itself, allowing for the wide margin of appreciation
allowed to the national authorities. It is in my view significant that the legislature
did not adopt my recommendation that all immune uses and operations should be
treated generally as though subject to planning permission, apart from the three
cases specified in the section. There may be room for argument as to where the
line in section 80 should have been drawn, but the compatibility of the section is
not the issue. Given the availability of the power as a legitimate means of
controlling use of a private access in the public interest, its use in the present
circumstances was in my view neither an abuse of the council’s powers nor outside
the boundaries of the discretion allowed by the Convention.
50. For these reasons, I would allow this appeal and (save for the second part of
the declaration, relating to possible use of section 66(2), which is not in dispute)
set aside the order of the Court of Appeal.
LORD NEUBERGER (with whom Lord Sumpton and Lord Hughes agree)
51. Mr Cusack contends that he is entitled to compensation for the loss of
vehicular access to his property at 66 Station Road, Harrow, across the footway of
the A409 highway. This contention is based on the proposition that, in order to
justify its right to impede that access (“the access”), the council should be required
to rely on section 66 of the Highways Act 1980 which provides for compensation,
rather than on section 80 of the same Act, which does not.
Page 21
52. Mr Cusack puts his case on two alternative bases. The first, which was
accepted by the Court of Appeal, is that, as a matter of ordinary statutory
interpretation, the council cannot choose to rely on section 80, and can only
properly rely on section 66. If this is wrong, his alternative basis, which was
rejected by the Court of Appeal, is that, once one takes into account the European
Convention on Human Rights, and in particular article 1 of the First Protocol
(“A1P1”), the council must rely on section 66 rather than section 80.
53. I agree with Lord Carnwath that both these arguments fail, and that
accordingly the council’s appeal to this court should be allowed, for the reasons
which he gives. However, I would like to add a little, not least because we are
differing from the Court of Appeal.
54. As has been accepted by both parties, at least as a matter of language,
section 66(2) and section 80(1) of the 1980 Act each appear to be capable of
justifying the council’s actions in blocking the access. If indeed they do both apply
in this case, then, subject to the effect of A1P1, it appears clear the council would
be entitled to choose which of the two statutory provisions to rely on. In
Westminster Bank Ltd v Minister of Housing and Local Government [1971] AC
508, 530, having said that where “Parliament has chosen to set up two different
ways of preventing development” and that “[i]t must have been aware that one
involved paying compensation but the other did not”, Lord Reid concluded that in
the absence of “special circumstances which make it unreasonable or an abuse of
power to use one of these methods”, a highway authority was entitled to rely on
either method.
55. Indeed, it was suggested that, bearing in mind the council’s obligation to
conserve public funds, the council has a duty to rely on section 80. Thus, in a
slightly different context, Lord Radcliffe said in Ching Garage Ltd v Chingford
Corporation [1961] 1 WLR 470, 475, that if a highway authority “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”. It
seems to me that the correct test in a case such as this, where there are two separate
statutory provisions which could apply, is that, as Lord Reid stated, it is open to
the council to rely on either provision, provided that it is reasonable in all the
circumstances for it to do so.
56. However, the Court of Appeal concluded that, despite the language of
section 80(1), it could not be relied on here, because, construing the 1980 Act as a
whole, section 66(2) was the specific statutory provision which applied to the
council’s actions in this case, and the council could not effectively disapply it by
invoking the more general power contained in section 80(1). In his clear and
succinct judgment, Lewison LJ identified the relevant approach to interpretation
Page 22
by quoting from a judgment of Sir John Romilly MR in Pretty v Solly (1859) 26
Beav 606, 610. Sir John said that “wherever there is a particular enactment and a
general enactment in the same statute, and the latter, taken in its most
comprehensive sense, would overrule the former, the particular enactment must be
operative, and the general enactment must be taken to affect only the other parts of
the statute to which it may properly apply”.
57. It was suggested on behalf of the council that this case represented an
opportunity for this court to “make it clear that canons of construction should have
a limited role to play in the interpretation” of statutes (and indeed contracts). In my
view, canons of construction have a valuable part to play in interpretation,
provided that they are treated as guidelines rather than railway lines, as servants
rather than masters. If invoked properly, they represent a very good example of the
value of precedent.
58. Interpretation of any document ultimately involves identifying the intention
of Parliament, the drafter, or the parties. That intention must be determined by
reference to the precise words used, their particular documentary and factual
context, and, where identifiable, their aim or purpose. To that extent, almost every
issue of interpretation is unique in terms of the nature of the various factors
involved. However, that does not mean that the court has a completely free hand
when it comes to interpreting documents: that would be inconsistent with the rule
of law, and with the need for as much certainty and predictability as can be
attained, bearing in mind that each case must be resolved by reference to its
particular factors.
59. Thus, there are some rules of general application – eg that a statute cannot
be interpreted by reference to what was said about it in Parliament (unless the
requirements laid down in Pepper v Hart [1993] AC 593 are satisfied), or that
prior negotiations or subsequent actions cannot be taken into account when
construing a contract. In addition, particularly in a system which accords as much
importance to precedence as the common law, considerable help can often be
gained from considering the approach and techniques devised or adopted by other
judges when considering questions of interpretation. Even though such approaches
and techniques cannot amount to rules, they not only assist lawyers and judges
who are subsequently faced with interpretation issues, but they also ensure a
degree of consistency of approach to such issues.
60. Hence the so-called canons of construction, some of which are of relatively
general application, such as the so-called golden rule (that words are prima facie to
be given their ordinary meaning), and some of which may assist in dealing with a
more specific problem, such as that enunciated by Sir John Romilly in Pretty v
Solly. With few, if any, exceptions, the canons embody logic or common sense, but
Page 23
that is scarcely a reason for discarding them: on the contrary. Of course there will
be many cases, where different canons will point to different answers, but that
does not call their value into question. Provided that it is remembered that the
canons exist to illuminate and help, but not to constrain or inhibit, they remain of
real value.
61. Although the principle expressed by Sir John Romilly, sometimes referred
to by the Latin expression generalia specialibus non derogant, is a valuable canon
of construction, I do not consider that it applies in relation to section 66 and
section 80 of the Highways Act 1980. That is because I do not think that it is
possible to treat section 66(2) as a specific provision in contrast with section 80(1)
as the more general provision. They are, as Mr Sauvain QC for the council
submitted, simply different provisions concerned with overlapping aims and with
overlapping applications.
62. Each provision authorises a highway authority to erect posts, in the case of
section 66 to “[safeguard] persons using the highway”, and in the case of section
80 “for the purpose of preventing access to … a highway”. There is a relatively
narrow exception, in section 66(5), to the circumstances in which section 66(2) can
be relied on but by virtue of section 66(8), if it is relied on, it carries with it
compensation; on the other hand, there are fairly widely drawn circumstances, set
out in section 80(3), in which section 80(1) cannot be invoked, but, where it is
relied on, it carries no compensation.
63. The notion that either of two independent provisions in the same statute can
be invoked for a particular purpose may seem surprising, especially when that
purpose involves an interference with a frontager’s right of access by a public
body, and when the provisions have significantly different consequences for the
frontager. Accordingly, one can well understand why the Court of Appeal sought
to reconcile section 66(2) and section 80(1) so as to avoid, or at least to minimise,
any overlap.
64. However, as Lord Carnwath’s analysis in paras 13-19 above shows, the
1980 Act, like its predecessor was a consolidating statute, and, while it included
amendments, it did not purport to rationalise and re-codify the existing law.
Rather, it sought to bring into a single Act of Parliament most, if not all, of the
various existing and rather disparate statutory provisions relating to highways,
which had developed over the years in a piecemeal way, with a few amendments.
That was equally true of the 1959 Act, as evidenced by the statutory provisions
considered, and the approach taken to them by the House of Lords, in Westminster
Bank.
Page 24
65. Extensive reference to the genealogy or archaeology of a consolidating
statute is almost always unhelpful, and is sometimes positively confusing.
However, in this case, once one appreciates the way in which the 1980 Act was put
together, and more particularly the different statutory origins of sections 66(2) and
80(1), the force of the argument that the two provisions should be construed in a
mutually exclusive way is substantially weakened. In view of the history of the
1980 Act, it is unsurprising that it includes provisions which substantially overlap,
and courts should not therefore strain to find an interpretation which avoids or
minimises such overlap.
66. So far as the application of A1P1 is concerned, as the Grand Chamber said
in Depalle v France (2010) 54 EHRR 535, para 78, “it is necessary not only to
consider whether there has been a formal taking or expropriation of property but to
look behind the appearances and investigate the realities of the situation”. On that
basis, it seems to me clear that the restriction of Mr Cusack’s frontager rights, by
depriving him of vehicular access to his property, did not involve the deprivation
of a possession, within the second rule of A1P1, as identified in Depalle, para 77.
However, I do accept, as did the council, that it falls within the third rule there
identified, namely the “control [of] the use of property in accordance with the
general interest”. As Lewison LJ said in the Court of Appeal, [2011] EWCA Civ
1514, [2012] PTSR 970, para 25,
“[E]ven on Mr Green’s hypothesis the council is not proposing to rob
Mr Cusack of all access to the highway. It is merely proposing to
block vehicular access to the highway; and even then perhaps only
access by four wheeled vehicles. So even on that basis he is not
deprived of the right of access to the highway: the right is being
controlled so that it can only be exercised in a particular way.”
67. Given that the disadvantage suffered by Mr Cusack falls within the third
rule, I do not see how it can be said that the council’s reliance on section 80, with
the consequence that Mr Cusack receives no compensation, falls foul of A1P1.
Although there is no general right to compensation where the third rule applies,
that is not, I accept, the end of the matter: it is appropriate to consider whether the
exceptions in section 80(3), and in particular the fact that Mr Cusack’s case does
not fall within them, can be said to be arbitrary.
68. I do not consider such a suggestion to be supportable. Section 80(3)(c) and
(d) are drawn so as to exclude accesses which are immune from enforcement under
the planning legislation, as opposed to accesses which, under para (c), are the
subject of planning permission or deemed planning permission, or which, in the
case of para (d), pre-dated the planning legislation. I accept that the distinction
between (i) actual or deemed permission and (ii) immunity from enforcement is
Page 25
somewhat narrow, but it undoubtedly exists and has long existed, and it is far from
arbitrary or irrational, as Lord Carnwath explains in paras 20-25.
69. Given that there is nothing in the argument that the council’s reliance in this
case on section 80, which carries no compensation, offends A1P1, I do not
consider that the fact that the council could have relied on section 66, which would
have carried compensation, alters that conclusion. The fact that these two
provisions happen to have overlapping applications, but different consequences in
terms of compensation, is explicable by reference to their different origins. A1P1
does not carry with it a general rule that, where the state seeks to control the use of
property, and could do so under two different provisions, which have different
consequences in terms of compensation, it is obliged to invoke the provision which
carries some (or greater) compensation. Of course, as in domestic law (as
explained by Lord Reid in Westminster Bank), in a particular case with special
facts, there may be such an obligation, but no such special facts have been prayed
in aid here.
LORD MANCE
70. I agree that the appeal should succeed for the reasons given by Lord
Carnwath in paras 27 to 50 and by Lord Neuberger in paras 61 to 69 of their
respective judgments.
Page 26
