Talking bollards and exploding canons

Supreme Court Main Entrance 03521C press office supplied 146x219Graeme Creer analyses the recent Supreme Court ruling on highways authorities' overlapping powers and the payment of compensation.

Mr Cusack is a partner in a firm of solicitors with an office in Station Road, Harrow. Station Road is a busy urban street with a mix of commercial and residential premises, not far from the Civic Centre. Mr Cusack’s office is in a building which was previously a private house. The small front garden has been converted to a forecourt. Mr Cusack’s visitors park on the forecourt, where there is room for two cars. They drive over the pavement to do so, and reverse back over the pavement on to the road to leave, very close to an uncontrolled pedestrian crossing. There are premises like this in every high street.

The Council decided that this was dangerous. There were no planning issues because of the length of time that the premises had been used in this way. They wanted to erect barriers at the back of the pavement to prevent vehicles driving on to the forecourt. They announced their intention in March 2009, and Mr Cusack sought a County Court injunction to prevent them. On 19 June 2013, four and a quarter years later, the Supreme Court in Cusack v London Borough of Harrow [2013] UKSC 40 decided the matter.

The Court of Appeal

The Council argued that they had power to construct the barriers under section 80 of the Highways Act 1980. Section 80 allows the highway authority to erect and maintain fences and posts to prevent access to the highway. The Council said that this is what they wanted to do. The power under section 80 cannot be exercised so as to interfere with a fence or gate required for agricultural purposes, obstruct a right of way, or obstruct a means of access that has planning permission or which was constructed before 1948, but none of these exclusions applies. The County Court Judge found in favour of the Council, and so did Maddison J on appeal to the High Court. Mr Cusack appealed.

The Court of Appeal reasoned as follows. Although frontagers have a common law right of access to the public highway (Marshall v Blackpool Corporation [1935] AC 16), this is subject to the provisions of the 1980 Act. But which provisions? Mr Cusack’s argument that the Council should have imposed conditions under section 184 of the 1980 Act, or made an Order under section 124, was rejected, because the Council wanted to prohibit vehicle movements, not control them by conditions, and a section 124 Order would have extinguished both pedestrian and vehicular rights, preventing any access to Mr Cusack’s premises. That left section 80 - and also section 66.

Section 66 (2) permits a highway authority to provide and maintain “raised paving, pillars, walls, rails or fences” for the purpose of safeguarding persons using a highway which “comprises or consists of a carriageway”.

Both section 80 and section 66 appeared to fit the bill, but, crucially, section 66 gives Mr Cusack a right to compensation if he “suffers damage” as a result of the works, and section 80 does not.

The Court of Appeal dusted off an obscure rule of statutory interpretation: “generalia specialibus non derogant” (general things do not derogate from specific things). If the same statute contains a general power and a specific power, the specific power should be used if it applies in the circumstances, and the general power is in consequence excluded (Pretty v Solly [1859]). Section 80 was a general power, but section 66 was a specific power, so only section 66 could apply. Mr Cusack did not get his injunction, but he would be entitled to compensation. They were sufficiently uncertain about their approach, though, to give leave to appeal to the Supreme Court.

The Supreme Court

The Supreme Court unanimously upheld Harrow’s appeal. Giving the lead judgment, Lord Carnwath took the opportunity to review not only the legislative history of the two provisions (section 80 derives from planning law and section 66 from public health, and the 1980 Act is a consolidating ragbag of overlapping provisions) but also, not entirely to the point, his own involvement in the development of planning enforcement legislation. He said there was no general rule to the effect that payment of compensation was required where action was taken to restrict access to premises.

Counsel for Harrow had suggested that the case offered the Supreme Court an opportunity to make it clear that canons of construction, including the “general/specific principle” (they are no longer allowed to talk in Latin and are forced to invent clumsy new terms like this), should have a limited role in the interpretation of statutes.

Lord Neuberger, the Supreme Court President, likes his canons. He said: “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. Provided that it is remembered that the canons exist to illuminate and help, but not to constrain or inhibit, they remain of real value.” He also said, though “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 … simply different provisions concerned with overlapping aims and with overlapping applications.”

Lord Carnwath agreed: “I see no reason to regard either power as more specific or less general than the other.” Applying the “golden rule” of statutory interpretation, Harrow was entitled to rely on the “clear words” of section 80 for the powers that it sought, and that there was no express or implied restriction on its use. It did not matter that section 66 could be used to achieve the same purpose.

As is traditional, both the Court of Appeal and the Supreme Court had to tussle with human rights arguments. They concluded that the Human Rights Act 1998 did not stop the council relying on section 80. Article 1 of the First Protocol (A1P1) to the European Convention on Human Rights encompasses three rules. The first is the general principle of peaceful enjoyment of property. The second rule covers the deprivation of possessions, but the third recognizes that the state can control the use of property in accordance with the general interest. Mr Cusack had not been deprived of his property, and could enjoy it peacefully. The erection of the barriers in front of the property was a control of the use of the property. Were the controls justified and proportionate, even without compensation?

Lord Carnwath said the case fell in the general field of land development and town planning, in which the state was allowed a wide margin of appreciation. “The issue of proportionality [of the interference with Cusack’s rights under A1P1] is not hard-edged, but requires a broad judgment as to where the ‘fair balance’ lies”, he noted. Although there was no general right to compensation under A1P1, he continued, the absence of compensation was relevant to the proportionality of any interference with the rights guaranteed by A1P1. He also noted that the respondent had not challenged the compatibility of section 80 with A1P1.

Lord Neuberger said that A1P1 did 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. He also drew a distinction between a use of property that was immune from planning enforcement, and a use that was the subject of an express deemed planning permission. Mr Cusack’s vehicular access to his property across the pavement was different from a means of access authorised by planning permission (and which, by virtue of section 80(3)(c), could not be obstructed by the use of the power conferred by section 80).

Comments

Mr Cusack cannot prevent the erection of the barriers, and will not receive any compensation. You can see why he thought this was unfair, and why the Court of Appeal was tempted to agree with him, but goodness knows how much it has cost him to find the answer. Many small businesses rely on passing trade, but highways authorities can erect back-of-footway barriers left right and centre, in the interests of safety, without paying more than the construction costs.

Although the point in issue was spectacularly narrow, there are three interesting sidelights. First, local authorities should be pleased that the “general/specific principle” has been put back in its box, even if the lid has not been closed too tightly. It could have caused havoc with, for example, the general power of competence in the Localism Act 2011.

Second, it is helpful to see the distinction between the deprivation of property and the control of the use of property applied in this case. Local authorities do a lot of controlling, and the idea that this is some kind of compulsory acquisition, requiring compensation, could have had repercussions elsewhere.

Third, Counsel for Harrow argued that, faced with two alternative powers, a local authority is entitled to adopt the one which imposes the least burden on the public purse, or even perhaps under a duty to do so. He relied on the House of Lords decision in Westminster Bank Ltd v Minister of Housing and Local Government [1971] A.C. 508, where a planning authority was allowed to refuse planning permission for development which would have interfered with the construction of a new road, without first prescribing a building line giving rise to a right to compensation.

Lord Carnwath felt that this might require some qualification, in that there would now be human rights proportionality considerations. Lord Neuberger was not convinced that there was a duty to choose the cheapest option. He said: “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 … 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.”

Although qualified, this is a further indication that the Courts are prepared to recognise that local authorities are entitled to take cost and resources into account, standing alongside HSE v Wolverhampton CC [2012] UKSC 34 (cost of compensation can be a factor in deciding whether to revoke planning permission) and R (KM) v Cambridgeshire CC [2012] UKSC 23 (determining the direct payments to be made to a disabled service user).

Graeme Creer is a consultant at Weightmans. He can be contacted on 0151 243 9834 or This email address is being protected from spambots. You need JavaScript enabled to view it..