Cusack v London Borough of Harrow: SC 19 Jun 2013

The landowner practised from property in Harrow. The former garden had now for many years been used as a forecourt open to the highway, for parking cars of staff and clients. Cars crossed the footpath to gain access, and backing out into the road when leaving. That use was recognised as lawful under planning law. The authority decided to erect barriers making such use impossible, and the claimant sought compensation for damage to his practice. The Court of Appeal had decided that the erection of the barriers was under section 66 of the 1980 Act, and not section 80, and that therefore compensation would be payable. The Council appealed.
Held: The appeal succeeded. The common law rights of access from property to a public have been severely curtailed by statute, and in general no compensation would be payable. Neither of the sections could be seen as more specific than the other.
The Council were entitled to choose section 80 for their purpose if it was not an attempt to circumvent a restriction provided elsewhere (eg section 66).
That choice did not amount to a deprivation of the claimant’s use of his land, but was merely a control of his use for the purposes of safety. This was happening in the context of planning control in which a state enjoyed a wide margin of appreciation.
A use of property immune from planning control did not amount to a permission for that use.
Carnwath L said: ‘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. ‘

Lord Neuberger, President, Lord Mance, Lord Sumption, Lord Carnwath, Lord Hughes
[2013] UKSC 40, [2013] PTSR 921, [2013] WLR(D) 250, [2013] HRLR 26, [2014] RVR 148, [2013] 26 EG 106, [2013] RTR 26, [2013] WLR(D) 250, [2013] 3 EGLR 29, [2013] 1 WLR 2022, [2013] 4 All ER 97, UKSC 2012/0006
Bailii, Bailii Summary, SC Summary, SC, WLRD
Highways Act 1980 66(2) 80, European Convention on Human Rights A1P1
England and Wales
CitedPretty v Solly CA 24-Jan-1859
In a statutory construction the specific overrides the general – generalia specialibus non derogant. Sir John Romilly MR said: ‘The general rules which are applicable to particular and general enactments in statutes are very clear, the only . .
CitedMarshall v Blackpool Corporation HL 1934
A land-owner having land adjacent to a public highway has, at common law, free access to and from the highway at any point where they abut.
Lord Atkin said: ‘The owner of land adjoining a highway has a right of access to the highway from any . .
CitedChing Garage Ltd v Chingford Corporation HL 1961
Lord Radcliffe said: ‘I think, however, that it needs to be remembered in connection with this statement that the full extent of the common law right to enter the highway at every point of the frontage for any highway purpose must have been modified . .
CitedWestminster Bank Limited v The Minister for Housing and Local Government, Beverley Borough Council HL 1971
The Bank’s application for planning permission was refused on the grounds that the development might prejudice the possible future widening of a road. The local authority could have prescribed a building line in accordance with a provision of the . .
CitedSporrong and Lonnroth v Sweden ECHR 23-Sep-1982
Balance of Interests in peaceful enjoyment claim
(Plenary Court) The claimants challenged orders expropriating their properties for redevelopment, and the banning of construction pending redevelopment. The orders remained in place for many years.
Held: Article 1 comprises three distinct . .
CitedJames and Others v The United Kingdom ECHR 21-Feb-1986
The claimants challenged the 1967 Act, saying that it deprived them of their property rights when lessees were given the power to purchase the freehold reversion.
Held: Article 1 (P1-1) in substance guarantees the right of property. Allowing a . .
CitedChassagnou and Others v France ECHR 29-Apr-1999
A law permitted local authorities to oblige landowners to transfer hunting rights over private land to approved hunting associations. The landowners could not prevent hunting on their property. Landowners so affected were made members automatically . .
CitedThomas and Others v Bridgend County Borough Council CA 26-Jul-2011
Carnwath LJ considered the effect of Bugajny and other cases after Sporrong: ‘ 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 . .
CitedDepalle v France ECHR 29-Mar-2010
Grand Chamber
The Court summarised the effect of Sporrong: ‘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, . .
CitedBugajny And Others v Poland ECHR 6-Nov-2007
The claimants complained that their land had been expropriated. 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 . .
CitedPepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .

Cited by:
CitedLondon Borough of Southwark and Another v Transport for London SC 5-Dec-2018
Question as to the meaning of the GLA Roads and Side Roads (Transfer of Property etc) Order 2000. When the highway was transferred was only the working surfaces, the road surface and the airspace and subsoil necessary for the operation, maintenance . .

Lists of cited by and citing cases may be incomplete.

Road Traffic, Planning, Damages, Human Rights

Updated: 10 December 2021; Ref: scu.510916