New Judgment: Cusack v London Borough of Harrow  UKSC 40
19 Wednesday Jun 2013
On appeal from:  EWCA Civ 1514.
The respondent solicitor’s practice is on a main road, in a property originally built as a dwelling. The garden at the front of the property was turned into a forecourt for use as a car park for staff and clients. In order to enter and leave the forecourt cars are required to cross a footpath. The appellant local authority informed the respondent that the movement of vehicles across the footpath was dangerous, and it intended to erect barriers to prevent cars from driving over the footpath.
At first instance, the respondent’s request for an injunction restraining the council from erecting the barriers was refused, with the county court holding that the Highways Act 1980, s 80 permits a highway authority to erect fences or posts for the purpose of preventing access to a public highway in certain circumstances. The Court of Appeal held that s 80 was not applicable because the situation was covered by s 66(2) of the 1980 Act, which empowers a highway authority to erect fences, posts etc. if necessary for the purpose of safeguarding persons using a highway, and would (unlike s 80) require compensation to be paid to the respondent.
The Supreme Court unanimously allowed the appeal. The local authority was entitled to rely on the clear wording of s 80 in order to erect barriers in front of the respondent’s property. It did not matter that s 66(2) could be used to achieve the same objective. However, a highway authority’s use of s 80 could be challenged if it circumvented the specific prohibitions of the use of the power conferred by s 66(2).
The Human Rights Act 1998 did not preclude the local authority from relying on s 80 as it amounted to a control of the use of property, not a deprivation of property. Also, this case concerns land development and town planning, in relation to which the state enjoys a wide margin of appreciation.