Case Comment: Cusack v London Borough of Harrow  UKSC 40
04 Thursday Jul 2013
The Supreme Court decision in Cusack v London Borough of Harrow  UKSC 40 holds that, given a choice of apparently overlapping statutory powers for erecting barriers preventing access to the highway from private property abutting the highway, a highway authority is entitled to invoke the power that does not entail the payment of compensation to the property owner.
The Court of Appeal  EWCA Civ 1514) had taken a different view. Lewison LJ ( with whom Ward LJ and Aikens LJ concurred) held that the local authority was confined to the statutory provision specifically tailored to the object of securing the highway safety objectives it sought to achieve, which in this case entailed the payment of compensation to the property owner for damage sustained by reason of the proposed works.
The appeal against the Court of Appeal decision was heard by Lords Neuberger, Mance, Sumption, Carnwath and Hughes on 23 April 2013 and decided on 19 June 2013. Their Lordships all agreed that the appeal should succeed. Lord Carnwath, with whom Lord Hughes and Lord Sumption agreed, gave the leading judgment, and Lord Neuberger gave a concurring judgment in which Lord Sumption and Lord Hughes also agreed. Lord Mance agreed with the gravamen of both decisions.
The relevant statutory provisions
The statute at issue in Cusack is the Highways Act 1980 (“the Act”). As Lord Carnwath pointed out at paragraph 19, the Act
“is the result of a complex evolutionary history going back over more than 130 years. Against this background, and in spite of the efforts of the consolidating draftsmen, it is not perhaps surprising that it contains a varied miscellany of sometimes overlapping and not always consistent statutory powers.” (see also Lord Neuberger at paragraph 64).
Section 66 of the Act confers on a highway authority a range of powers for the purpose of safeguarding persons using the highway. In particular, section 66(2) allows a highway authority to
“provide and maintain in a highway maintainable at the public expense by them which consists of or comprises a carriageway, such raised paving, pillars, walls, rails or fences as they think necessary for the purpose of safeguarding persons using the highway.”
It is clear from section 66 read as a whole that the power under section 66(2) can be exercised so as obstruct a private right of access to any premises. By virtue of section 66(8), a highway authority is obliged “to pay compensation to any person who sustains damage by reason of” works undertaken by the highway authority under section 66(2).
Section 80(1)(a) of the Act allows a highway authority to “erect and maintain fences or posts for the purpose of preventing access to…a highway maintainable at public expense by them”. From the provision as a whole it is clear that this power cannot be used to obstruct a public right of way, but can be used to obstruct a private right of way. Unlike section 66, however, section 80 contains no provision requiring compensation to be paid to any person who sustains damage by reason of the exercise of the power in question.
Mr Cusack is a solicitor whose practice is located at a former dwelling at 66 Station Road Harrow. He, his staff and his clients park in the forecourt in front of the building, which is open to the highway – the A409 – which at that point is a single carriage road in each direction, flanked by a pedestrian footway; colloquially, a pavement. In order to enter the forecourt, cars must drive over the pavement, and in order to leave, they must reverse over the pavement and into the road. Mr Cusack has used this method of access to and egress from the property for many years.
In early 2009, the London Borough of Harrow, as highway authority, (“the Council”) wrote to Mr Cusack asserting that the movement of vehicles over the pavement “causes danger to both pedestrians and other motorists”. This was followed by a letter from the Council’s contractors in March 2009, advising that the Council was planning to erect barriers from 36 to 76 Station Road to prevent vehicles from driving over raised kerbs and footways. In response, Mr Cusack sought an injunction in the County Court restraining the Council from erecting the proposed barriers outside 66 Station Road.
The County Court and the High Court accepted the Council’s contention that it could choose to proceed under section 66(2) or under section 80(1)(a) of the Act, and that, as the custodian of public funds, a public authority is entitled to invoke a power that does not entail the payment of compensation in preference to one that does. Hence each court in turn upheld the Council’s contention that it was entitled to erect the barriers pursuant to section 80 of the Highways Act, in terms of which no compensation was payable to Mr Cusack for any damage he sustained by reason of the works undertaken by the Council.
Decision of the Court of Appeal
The Court of Appeal took a different view. Lewison LJ invoked the maxim of statutory interpretation: generalia specialibus non derogant (a general provision does not derogate from a specific one). As applied by the Court of Appeal, this meant that:
“Where there is a general provision and a more specific provision, and a course of action could potentially fall within both the court will usually interpret the general provision as not covering matters covered by the specific provision. “ ( EWCA Civ 1514 at paragraph 19)
As analysed by the Court of Appeal, the Council proposed to erect the barrier for the purpose of “safeguarding persons using the highway”, the very purpose contemplated by section 66(2). Although the language of section 80 of the Act also gave a highway authority a power to obstruct a frontager’s private right of access to the highway, the Court of Appeal considered that the Council was required to proceed in terms of section 66(2), as the power whose object was most closely aligned with the purpose which the Council sought to advance and not under section 80. If the Council chose to proceed in terms of section 66(2), compensation would be payable to Mr Cusack.
The Supreme Court decision
The Supreme Court allowed the Council’s appeal against the decision of the Court of Appeal confining the Council to its powers under section 66(2). The Supreme Court considered that, as a matter of statutory construction, and without reference to the Human Rights Act 1988, the Council was entitled to proceed under section 80 or under section 66(2).
The starting point of Lord Carnwath’s analysis was that, statute aside, Mr Cusack, as owner of property fronting on the highway, would have had a common law right of unrestricted access to the highway from any part of the property. Those rights have in practice become very restricted by statute (paragraph 4). One of the questions considered by the Court was whether the restriction of private rights of access under statutory powers that did not entail the payment of compensation remained lawful after the enactment of the Human Rights Act 1988.
Lord Carnwath, with whom Lord Sumption and Lord Hughes agreed, expressed the view that the general/specific maxim was inapplicable to the case because neither power was more specific or less general than the other. Although section 66(2) deals with safeguarding persons using the highway, it does so in general terms which are not specifically related to private access to the highway. The section 80 powers are framed in narrower terms, and relate specifically to access to an existing or future highway. Although the provision does not mention highway safety as an object, it is implicit that the powers must be used for purposes related to those of the Act, including highway safety (paragraph 12). Lord Carnwath’s consideration of the language of the two provisions, and their legislative history, led to the conclusion that the Council was, as a matter of statutory construction, entitled to invoke the powers under section 80 or those under section 66(2) (paragraphs 27, 30).
The Court accepted that where the Council has two alternative statutory methods for achieving the same object, it is entitled to adopt the one which does not entail the payment of compensation. Only in special circumstances might it be unreasonable or an abuse of power to use one of the methods in preference to the other, but absence of compensation was not one of them – Westminster Bank Ltd v Minister of Housing and Local Government  AC 508 at 530).
Lord Neuberger, also with the agreement of Lord Sumption and Lord Hughes, similarly considered that the maxim generalia specialibus non derogant did not apply in relation to section 66 and section 80 of the Act. The former could not be considered more specific than the latter. They were different provisions with overlapping aims and applications (paragraph 61).
Lord Neuberger affirmed that although the general/specific principle was not applicable to the two provisions at issue in this case, the maxim was itself a valuable canon of construction. His Lordship took pains to spell out:
“In my view, canons of construction have a valuable part to play in interpretation, provided that they are treated as guidelines that than railway lines, as servants rather than masters. If invoked properly, they represent a very good example of the value of precedent” (paragraph 57, and see Lord Neuberger’s further remarks on textual interpretation at paragraphs 57 to 60).
The Court having decided that, apart from the Human Rights Act 1988, the Council was free to invoke the powers under section 80 of the Highways Act that did not entail the payment of compensation, it was necessary to consider whether Mr Cusack’s property rights under Article 1 of Protocol 1 (A1P1) to the Convention would thereby be infringed.
With reference to the summary of the approach of the European Court of Human Rights to A1P1 cases in Depalle v France (2010) 54 EHRR 535 at 539, the Court invoked the distinction between the second rule of A1P1, which covers the deprivation of possessions, and the third rule, which covers the control of use of property in accordance with the general interest. Exercise of the power under section 80 was a control of use in the general interest, and it was in that context that compatibility with A1P1 was to be evaluated. In the general field of land development and town planning, the state is allowed a wide margin of appreciation, but it was for the Court to determine whether the requisite balance was maintained in a manner consonant with the property rights involved. This would go to the proportionality of the interference relative to the object sought to be achieved.
Lord Carnwath pointed out that there had been no challenge to the compatibility of section 80 with A1P1 as such. He considered, however, that, in addition to the Westminster Bank question as to whether the Council’s action was an abuse of its powers under section 80, considerations under A1P1 may require a court to consider whether, in the exercise of a statutory power, “a fair balance was ….struck between the competing general and individual interests.” 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:
“Given the availability of the power as a legitimate means of controlling use of a private access in the public interest, its use in the present circumstances as in my view neither an abuse of the council’s powers not outside the boundaries of the discretion allowed by the Convention.”
Or as Lord Neuberger put it at paragraph 69:
“Given that there is nothing in the argument that the council’s reliance in this case on section 80, which carries no compensation, offends A1P1, I do not consider that the fact that the council could have relied on section 66, which would have carried compensation, alters that conclusion. The fact that these two provisions happened to have overlapping applications, but different consequences in terms of compensation, is explicable by reference to their different origins. A1P1 does 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.”