Cusack v London Borough of Harrow

Where a highway authority’s proposed works and stated purpose fall squarely within a specific statutory power, a general power should not be treated as covering the same matter: generalia specialibus non derogant. Under section 66(2) of the Highways Act 1980, barriers to safeguard highway users may block a frontager’s vehicular access, but compensation under section 66(8) follows. The authority cannot select a general power merely to avoid that compensation. Blocking vehicular access is a control of the use of property, rather than a deprivation of possessions under Article 1 of the First Protocol. Lack of compensation does not itself make such control unjustified or disproportionate.

Mr Cusack, a solicitor, had long used a forecourt at his premises for vehicle access across a footway. The London Borough of Harrow proposed erecting barriers because it considered vehicle movements, particularly reversing into the highway, dangerous to pedestrians and other road users.

Mr Cusack sought an injunction in the county court. HH Judge McDowell and Maddison J held that the Council could rely on section 80 of the Highways Act 1980. The appeal concerned the proper statutory power, the relevance of the stopping-up and vehicle-crossing provisions, the common-law rights of a frontager, and compatibility with Article 1 of the First Protocol.

Lewison LJ delivered the leading judgment, with Aikens and Ward LJJ agreeing. The appeal was allowed to the extent indicated.

1. A frontager has a common-law right of access to the highway from the premises. That right remains subject to public rights and may be affected by statutory highway powers. Marshall v Blackpool Corporation [1935] AC 16 and Ching Garage Ltd v Chingford Corporation [1961] 1 WLR 470 supported that analysis.

2. Sections 124 and 126 of the Highways Act 1980 concern the legal stopping up of a private means of access. Stopping up extinguishes the right and is not merely a physical obstruction. It is an all-or-nothing power and could not be used to remove vehicular access while preserving pedestrian access over the same land.

3. Section 66(2) provides the specific safety power. It permits barriers in a highway where the authority considers them necessary to safeguard highway users. The power can block a frontager’s vehicular access, but works under it attract compensation under section 66(8).

4. Applying the principle that a specific enactment governs over a general enactment, as stated in Pretty v Solly (1859) 26 Beav 606 and R v Ramasamy [1965] AC 1, the Council could not rely on section 80 merely to avoid compensation. The proposed works and their safety purpose fell within section 66(2). The court declared that section 80 did not apply, and that section 66(2) did provide power to carry out the works. No injunction was granted. The court did not decide that section 80 could never interfere with a frontager’s access.

5. The human-rights reasoning was alternative. Under Article 1 of the First Protocol, blocking vehicular access was control of the use of property, not deprivation of possessions. The control-of-use cases allowed a wide margin of appreciation, and the absence of compensation did not itself establish incompatibility or disproportionality. The court therefore found section 80 compatible with Article 1 and did not need to rely on section 3 of the Human Rights Act 1998.

• Court of Appeal (Civil Division): In [2011] EWCA Civ 1514, allowed the appeal to the extent indicated. It declared that section 80 did not apply to the proposed works, but that section 66(2) provided the relevant power.
• High Court, Queen’s Bench Division: Maddison J held that the Council had power under section 80 of the Highways Act 1980.
• County court: HH Judge McDowell found against Mr Cusack and upheld the Council’s reliance on section 80.