Cusack v London Borough of Harrow

Where two independent statutory powers overlap, a public authority may ordinarily use either power, although only one carries compensation. Its choice must be reasonable and must not constitute an abuse of power.

A restriction preventing vehicular access from private property to a highway controls the use of property for the purposes of article 1 of the First Protocol. It does not deprive the owner of a possession. Proportionality requires a fair balance between public and individual interests, but neither the absence of compensation nor the availability of another compensatory power establishes a breach.

Canons of construction remain useful guides. They do not require overlapping provisions in a consolidating statute to be made mutually exclusive where neither is properly characterised as the specific provision.

The respondent solicitor used the forecourt of his premises for parking. Vehicles crossed the footway and reversed into a busy road. The appellant highway authority proposed barriers to prevent vehicular access because of the danger to road users.

The county court, and Maddison J on appeal, found for the authority. The Court of Appeal allowed the respondent's appeal in [2011] EWCA Civ 1514, holding that the authority could act under section 66(2) of the Highways Act 1980, which required compensation, but not under section 80, which did not.

The issues were whether ordinary statutory construction confined the authority to section 66 and, if not, whether reliance on section 80 without compensation was incompatible with article 1 of the First Protocol.

1. The appeal was allowed unanimously. Lord Carnwath gave the principal judgment, with which Lord Sumption and Lord Hughes agreed. Lord Neuberger, also with the agreement of Lord Sumption and Lord Hughes, gave additional reasons. Lord Mance agreed with the dispositive reasoning in both judgments.

2. Sections 66(2) and 80 of the Highways Act 1980 were independent powers with overlapping purposes and applications. Neither was properly characterised as specific in contrast to the other. The maxim generalia specialibus non derogant therefore did not exclude section 80. The Act's evolutionary history explained why the consolidating legislation contained overlapping powers with different compensation consequences.

3. The clear language of section 80 authorised the proposed barriers. An authority possessing two statutory means of achieving an objective may ordinarily choose either, even where only one requires compensation. The choice must nevertheless be reasonable in all the circumstances. Special circumstances may make reliance on the non-compensatory route unreasonable or an abuse of power, and judicial review remains available.

4. The access had become lawful for planning purposes through immunity from enforcement. That status did not place it within section 80(3)(c) or (d). Those provisions protected access authorised by actual or deemed planning permission and access predating planning legislation. The statutory distinction between permission and immunity was narrow but established and was neither arbitrary nor irrational.

5. Preventing vehicular access did not deprive the respondent of a possession under article 1 of the First Protocol. It controlled the use of property in the general interest. Compatibility therefore depended on lawfulness, the general interest and whether a fair balance was struck between public and private interests. The inquiry was a broad proportionality judgment, informed by the wide margin of appreciation in land development and planning matters.

6. Compensation is relevant to that balance but is not invariably required for a control of use. The mere availability of an alternative statutory power carrying compensation did not make reliance on section 80 disproportionate. No special facts displaced that conclusion. The Court of Appeal's order was set aside, except for its unchallenged declaration that section 66(2) was also available.

1. United Kingdom Supreme Court: Allowed the authority's appeal in [2013] UKSC 40 and set aside the Court of Appeal's order, except for the unchallenged declaration that section 66(2) of the Highways Act 1980 was available.
2. Court of Appeal: In [2011] EWCA Civ 1514, reversed the lower courts. It held that the authority could proceed under section 66(2), but not section 80.
3. High Court: Maddison J dismissed the respondent's appeal from the county court.
4. County court: Judge McDowall found for the highway authority and refused the respondent's claim to prevent erection of the barriers.