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Apr 11 2012

Harrow v Cusack – Harrow Council Appeals to Supreme Court

An interesting, and little known court case has taken another step forward this week, which might have ramifications not just across Harrow, but the UK as a whole.

Following a decision in early 2009 to carry out barrier/bollard type work on Station Road to prevent vehicles being driven over the footway and in to forecourts (for reasons of pedestrian safety and damage to footways), Mr Cusack objected and applied to the County Court for an injunction to prevent the council from carrying out the works. He asserted that he had a right of way over the footway as a result of approximately 40 years of use in that way – i.e. driving his vehicle over the footway in and out of the forecourt of his property.

In its defence and counterclaim to the County Court action commenced by Mr Cusack, the council alleged that it had the power to erect barriers under either section 80 of the Highways Act 1980 or under section 66 of the same Act. The County Court judge found in the council’s favour that section 80 of the Highways Act 1980 gave the council the power to prevent access to and from the highway by erecting a barrier.

On appeal by Mr Cusack, the High Court also found in favour of the council that section 80 of the Highways Act 1980 allowed the council to carry out such works.

In the Court of Appeal, the main issue was which power (if any) authorised the council to carry out the proposed works to prevent access to and from Mr Cusack’s forecourt. Whilst a number of powers were considered, essentially the two that were the subject of debate were section 66 and section 80 of the Highways Act 1980. An important difference between the two sections is that section 66 contains a provision for payment of compensation to someone who suffers damage as a result of works.

The Court of Appeal had to consider whether the council could rely on either section or on one only, and if so, which one.

The Court of Appeal determined that the council did have the power to erect barriers as proposed, but that this could only be under section 66 of the Act and not section 80. The court reached this conclusion on the basis that as a general principle in the rules of interpretation, where there is a general provision (in this case section 80 in the Court’s opinion) and a more specific provision (in this case section 66 in the Court’s opinion) (where both could possibly apply) it is the specific provision that should be applied. The council has maintained that its proposed works are for reasons of safety (of pedestrians and road users), and the court considered that the provisions of section 66 fit most appropriately with what the council is seeking to achieve and made a declaration to the effect that the council could carry out such works under that section and not under section 80. The court went as far as to state that section 80 did not apply to the facts of this case and although the court did note that there may be circumstances when section 80 could be used to limit someone’s rights of access to/from the highway, it did not specify what such circumstances may be.

The Court of Appeal decision means that if the council wishes to carry out barrier works in front of Mr Cusack’s property, it will need to compensate him for any damage he suffers as a result of the works. He has already indicated that he would suffer a loss in the value of his property. The council has plans for barrier type works in other parts of the borough too.

It should be noted that as a result of the ongoing litigation no barrier works have been carried out in front of Mr Cusack’s property as yet, although there is no injunction preventing the council from doing so.

Harrow, having considered it’s position, has decided to notify the Supreme Court that it will appeal the decision of the Court.

If the Court of Appeal decision is not appealed to the Supreme Court for reconsideration and therefore stands as it is, the Council will encounter significant difficulties in its pursuit to prevent persons driving over footways, causing damage to them and posing safety risks to other road users and pedestrians. The decision of the Court of Appeal will mean that the Council (and other authorities) are restricted in their options to prevent vehicles being driven over footways and will also be liable to pay compensation to anyone who suffers damage as a result of the Council’s actions to prevent such activity.

Watch this space.

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