June 19th, 2013 by James Goudie KC

In Cusack v Harow LBC [2013] UKSC 40 the Supreme Court has held, reversing the Court of Appeal, that the Council as highway authority was not required to pay compensation for the erection of barriers preventing a property owner accessing a public highway from his property.  The Council had power to proceed under Section 80, which does not provide for compensation, rather than Section 66(2) of the Highways Act 1980 (“HA 1980”), which does provide for compensation.  The Supreme Court observed that, albeit the owner of a property adjoining a highway has a common law right of access to the highway, without restriction, from any part of his or her property, that right has been greatly limited by statutory provisions and there is no general right to compensation when action is taken to restrict a property owner’s right of access to an adjoining highway.

Canons of statutory construction, including the principle that a specific statutory provision excludes the application of an inconsistent and more general statutory provision, have a valuable role to play as guidelines embodying logic or common sense.  However, the distinction between general and specific statutory provisions was of no assistance in this case because neither Section 66(2) nor Section 80 of HA 1980  could be regarded as more specific or less general then the other.  HA 1980 is a consolidating statute and is the result of a complex history extending over more than 130 years. It contains a variety of overlapping and sometimes inconsistent powers. The Council was entitled to rely on the clear wording of Section 80 in order to erect the barriers. It did not matter that the Council could use Section 66(2) to achieve the same objective. However, a highway authority’s use of Section 80 could be challenged if, for example, it circumvented the specific prohibitions of the use of the power conferred by Section 66(2).

The Human Rights Act 1998 did not preclude the Council from relying on Section 80 because it involved no breach of the right to peaceful enjoyment of property under Article 1 of the First Protocol to the ECHR (“A1P1”).  The erection of the barriers would be a control of the use of property, not a deprivation of property. The case concerned land development and town planning, in relation to which the State enjoys a wide margin of appreciation. The issue of the proportionality of the interference with A1P1 rights requires a broad judgment as to where a fair balance lies between competing general and individual interests.  The mere fact that another statutory route was available to the Council and that it required the payment of compensation did not itself lead to the conclusion that the Council’s reliance on Section 80 was disproportionate. There is no general rule under A1P1 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 use the provision which carries some (or greater) compensation.

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