ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
Mr Justice Maddison
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE AIKENS
LORD JUSTICE LEWISON
| PATRICK J CUSACK
|- and -
|LONDON BOROUGH OF HARROW
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MR TOM WEEKES (instructed by Borough Solicitors, Harrow) for the Respondent
Hearing date : 28 November 2011
Crown Copyright ©
Lord Justice Lewison:
"The [Council] has formed the view that [Mr Cusack] and his wife, by driving over the Footway (and by authorising others to do so) are endangering the safety of: (i) drivers and passengers of vehicles, and cyclists, using the carriageway (ii) pedestrians using the Footway; and (iii) pedestrians crossing the carriageway."
"The owner of land adjoining a highway has a right of access to the highway from any part of his premises. This is so whether he or his predecessors originally dedicated the highway or part of it and whether he is entitled to the whole or some interest in the ground subjacent to the highway or not. The rights of the public to pass along the highway are subject to this right of access: just as the right of access is subject to the rights of the public, and must be exercised subject to the general obligations as to nuisance and the like imposed upon a person using the highway. Apart from any statutory provision there is no obligation upon an adjoining owner to fence his property from the highway: and though in urban districts fencing is usual, your Lordships will be familiar with many instances to the contrary, as for instance in country towns, where it is common to find large open forecourts to country inns and the like where market carts and farm vehicles are left during business hours. Moreover the ordinary traffic on any highway is always liable to be increased by the exercise by an adjoining owner of this right of access. A building estate may be developed, or a theatre, concert hall, cinema, or hotel erected on premises which will necessarily involve incalculable increase of traffic. Subject to special statutory provisions protecting footpaths, the right of access is not affected by the fact that part of the highway is only dedicated as a footway, or is otherwise lawfully appropriated to foot passengers. The passage of the public along a footway is always liable to be temporarily interrupted by adjoining owners' right of access, whether to the footway or the roadway: and the dangers, if dangers there be, of a pedestrian having his path crossed by vehicles exercising right of access may be increased, and lawfully increased, by the adjoining owner or owners increasing their means of access."
"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 in very many cases by the exercise of statutory powers with regard to the highway and that, apart from local Acts, section 155 (5) of the Highways Act, 1959, is now the controlling enactment. …
It is plain, therefore, that, certainly in any built-up area, there are numerous rights of access to the streets from adjoining premises, and that they are rights derived from common law or statute, general or local, or, perhaps, from a combination of the two sources. In my opinion, it is well-settled law that a highway authority exercising statutory powers to improve or maintain a street or highway, such as to raise or lower its level, to form a footpath, to pave or kerb or to erect omnibus shelters, is empowered to carry out its works even though by so doing it interferes with or obstructs frontagers' rights of access to the highway. "
"(1) It is the duty of a highway authority to provide in or by the side of a highway maintainable at the public expense by them which consists of or comprises a made- up carriageway, a proper and sufficient footway as part of the highway in any case where they consider the provision of a footway as necessary or desirable for the safety or accommodation of pedestrians; and they may light any footway provided by them under this subsection.
(2) A highway authority may 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.
(3) A highway authority may provide and maintain in a highway maintainable at the public expense by them which consists of a footpath or bridleway, such barriers, posts, rails or fences as they think necessary for the purpose of safeguarding persons using the highway.
(5) The power conferred by subsection (3) above, and the power to alter or remove any works provided under that subsection, shall not be exercised so as to obstruct any private access to any premises or interfere with the carrying out of agricultural operations.
(8) A highway authority or council shall pay compensation to any person who sustains damage by reason of the execution by them of works under subsection (2) or (3) above."
"(1) Subject to the provisions of this section, a highway authority may erect and maintain fences or posts for the purpose of preventing access to—
(a) a highway maintainable at the public expense by them,
(b) land on which in accordance with plans made or approved by the Minister they are for the time being constructing or intending to construct a highway shown in the plans which is to be a highway so maintainable, or
(c) land on which in pursuance of a scheme under section 16 above, or of an order under section 14 or 18 above, they are for the time being constructing or intending to construct a highway.
(2) A highway authority may alter or remove a fence or post erected by them under this section.
(3) The powers conferred by this section shall not be exercised so as to—
(a) interfere with a fence or gate required for the purpose of agriculture; or
(b) obstruct a public right of way; or
(c) obstruct any means of access for the construction, formation or laying out of which planning permission has been granted under Part III of the Town and Country Planning Act 1990 (or under any enactment replaced by the said Part III); or
(d) obstruct any means of access which was constructed, formed or laid out before 1st July 1948, unless it was constructed, formed or laid out in contravention of restrictions in force under section 1 or 2 of the Restriction of Ribbon Development Act 1935…"
"(1) Subject to subsection (3) below, where the highway authority for a highway consider that a private means of access from the highway to any premises is likely to cause danger to, or to interfere unreasonably with, traffic on the highway, they may be authorised by an order made in accordance with this section to stop up the means of access.
(3) No order under this section relating to an access to any premises shall be made by the Minister or, in the case of an order made by a local highway authority, confirmed either by the Minister or by that authority unless the Minister or, as the case may be, the confirming authority is or are satisfied—
(a) that no access to the premises from the highway in question is reasonably required, or
(b) that another reasonably convenient means of access to the premises is available or will be provided by the Minister or, as the case may be, the local highway authority."
"Where the occupier of any premises adjoining or having access to a highway maintainable at the public expense habitually takes or permits to be taken a mechanically propelled vehicle across a kerbed footway or a verge in the highway to or from those premises, the highway authority for the highway may, subject to subsection (2) below, serve a notice on the owner and the occupier of the premises—
(a) stating that they propose to execute such works for the construction of a vehicle crossing over the footway or verge as may be specified in the notice; or
(b) imposing such reasonable conditions on the use of the footway or verge as a crossing as may be so specified."
"If they can do what they want to without having to pay compensation, they have no business to use public funds in paying over money to an objector who is not entitled to it…"
"The general rules which are applicable to particular and general enactments in statutes are very clear, the only difficulty is in their application. The rule is, that wherever there is a particular enactment and a general enactment in the same statute, and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply."
"The question is, of course, a difficult one: but their Lordships are of opinion that the correct way to solve it is by applying the maxim of interpretation generalia specialibus non derogant."
"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."
"That Article comprises three distinct rules. The first rule, which is of a general nature, enounces the principle of peaceful enjoyment of property; it is set out in the first sentence of the first paragraph. The second rule covers deprivation of possessions and subjects it to certain conditions; it appears in the second sentence of the same paragraph. The third rule recognises that the States are entitled, amongst other things, to control the use of property in accordance with the general interest, by enforcing such laws as they deem necessary for the purpose; it is contained in the second paragraph." (Sporrong v Sweden (1983) 5 EHRR 35 §61)
Lord Justice Aikens:
Lord Justice Ward: