Cusak v Harrow London Borough Council

The Supreme Court held that the council was entitled to rely on section 80 of the Highways Act 1980 to erect barriers preventing vehicular access from a forecourt to the highway, despite the existence of an alternative power in section 66(2) which carries an express right to compensation. The court rejected the Court of Appeal's view that the specific/general canon required section 66(2) to prevail. It further held that use of section 80 did not breach article 1 of the First Protocol to the European Convention on Human Rights (A1P1) because the interference constituted a lawful control of use of property within the State's margin of appreciation, not a deprivation requiring exceptional justification.

The decision emphasised (i) the historical and statutory context of the Highways Act 1980 and its predecessor statutes; (ii) that overlapping statutory powers may coexist where they derive from different origins; and (iii) that the Human Rights Act 1998 does not require the authority to choose a compensatory route merely because one exists. The appeal was therefore allowed and the Court of Appeal order set aside.

Background and facts:

• Since 1969 the respondent, Mr Cusack, occupied premises at 66 Station Road, Harrow, using the ground floor as solicitor's offices and a forecourt open to the highway for parking, involving vehicles crossing the footway.
• The council proposed to erect barriers along Station Road under powers in the Highways Act 1980 to prevent vehicles driving over the footway. The main statutory provisions in issue were section 80 and section 66(2) of the Highways Act 1980.

Procedural history: Proceedings began in the county court for an injunction to prevent erection of the barriers. Judge McDowall (county court) and on appeal Maddison J found for the council; the Court of Appeal ([2011] EWCA Civ 1514) reversed, holding section 66(2) to be the applicable provision; the council appealed to the Supreme Court.

Nature of the claim and issues:

• Claimant sought to prevent the council erecting barriers and to establish a right to compensation on the basis that the council should rely on section 66(2), which provides compensation (section 66(8)), rather than section 80, which contains no compensation provision.
• The Supreme Court framed the issues as: (i) whether, as a matter of statutory interpretation, section 80 could lawfully be relied upon where section 66(2) was arguably apt; (ii) if not resolved by construction, whether reliance on section 80 would be incompatible with A1P1 of the Convention when read with the Human Rights Act 1998 (in particular sections 3 and 6).

Court's reasoning:

• Statutory interpretation: The court analysed the legislative history of the two provisions and concluded they derive from different statutory origins and may legitimately overlap. The general/specific construction canon was not determinative: section 66(2) could not be regarded as a single specific code displacing section 80. The council was entitled to rely on the clear words of section 80 unless the Human Rights Act required a different approach.
• Human rights: The court rejected the submission that removal of vehicular access amounted to a deprivation of possessions under the second limb of A1P1. The interference was properly characterised as a control of use under the third limb. Having regard to Strasbourg jurisprudence and the wide margin of appreciation in planning and highways matters, the court found that reliance on section 80 in the circumstances did not violate A1P1 and was not disproportionate.
• Practical points: The court noted the planning background (longstanding immunity of the use from enforcement and the evolution of planning law, including section 191 of the 1990 Act) but held that Parliament’s choice to retain section 80 without compensation was significant.

Relief sought: Injunction preventing erection of barriers; declaration concerning entitlement to compensation. The Supreme Court allowed the council's appeal and set aside the Court of Appeal order, rejecting the claimant's statutory and Convention arguments.

Appeal allowed. The Supreme Court held (1) section 80 of the Highways Act 1980 was available to the council and was not displaced by section 66(2), because the two provisions have different statutory origins and may overlap; (2) application of section 80 in the circumstances did not breach article 1 of the First Protocol to the Convention when read with the Human Rights Act 1998, as the interference was a control of use within the State's margin of appreciation and not a deprivation requiring compensation.

County Court (Judge McDowall) decision for the council; on appeal to Maddison J the council prevailed; the Court of Appeal ([2011] EWCA Civ 1514) reversed and declared section 66(2) applicable; the council appealed to the Supreme Court ([2013] UKSC 40) which allowed the appeal and set aside the Court of Appeal order.