Factual and Procedural Background
The Plaintiff, a solicitor, has practised from a converted dwelling at 66 Station Road, The City, since 1969. The front garden was long ago replaced by an open forecourt used for staff and client parking, requiring vehicles to cross the pedestrian footway and reverse into the carriageway of the A409. In 1973 a temporary planning permission for office use expired, but the use continued and became lawful by the passage of time.
In January 2009 The Council, acting as highway authority, asserted that vehicular movements across the footway created danger to pedestrians and motorists. It announced plans to erect physical barriers along Station Road pursuant to the Highways Act 1980. The Plaintiff issued county-court proceedings for an injunction. Judge McDowall and, on appeal, Judge Maddison upheld The Council’s position; the Court of Appeal reversed them, holding that the correct statutory power was section 66(2) (which carries compensation) rather than section 80 (which does not). The Council appealed to the Supreme Court. Pending determination, no barriers were erected outside number 66, although neighbouring properties were affected.
Legal Issues Presented
- Whether The Council’s proposed erection of barriers could lawfully be carried out under section 80 of the Highways Act 1980, or was confined to section 66(2).
- If section 80 is available, whether the absence of a compensation mechanism breaches Article 1 of the First Protocol (“A1P1”) of the European Convention on Human Rights as applied by the Human Rights Act 1998.
- Whether, under the Human Rights Act, the court must interpret or restrict section 80 so as to require the payment of compensation, or require The Council to act under section 66(2).
Arguments of the Parties
Appellant’s Arguments (The Council)
- Sections 66(2) and 80 confer distinct but overlapping powers; nothing in the statute compels use of the compensation-bearing provision.
- Under Westminster Bank Ltd v Minister of Housing a public authority may choose the route that best conserves public funds when both achieve the same objective.
- The power in section 80 has no implied limitation; safety concerns fall within its purposes even though not expressly stated.
- No breach of A1P1 arises because the measure is a control of use, not a deprivation of possessions, and a right to compensation is not mandatory.
Respondent’s Arguments (Plaintiff)
- Applying the canon generalia specialibus non derogant, the more specific safety power in section 66(2) displaces the general fencing power in section 80.
- Section 80, if interpreted to allow uncompensated interference with an established vehicular access, would be incompatible with A1P1; therefore section 3 of the Human Rights Act requires a compensatory reading or compels reliance on section 66(2).
- Post-1991 planning reforms treat a long-used access as “lawful”, so excluding it from compensation under section 80(3) is arbitrary and disproportionate.
- Permitting The Council to switch between statutory powers would undermine the structured compensation scheme found elsewhere in the Highways Act.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|
| Marshall v Blackpool Corporation [1935] AC 16 | Common-law right of unrestricted access from frontage to highway. | Forms the baseline right which statutory powers may override. |
| Ching Garage Ltd v Chingford Corporation [1961] 1 WLR 470 | Highway authorities may obstruct access when exercising statutory powers; compensation depends on statute. | Cited as historical confirmation that compensation is not automatically payable. |
| Pretty v Solly (1859) 26 Beav 606 | Canon of construction: specific provisions override general ones. | Relied on by the Court of Appeal; rejected by the Supreme Court as inapplicable here. |
| Westminster Bank Ltd v Minister of Housing and Local Government [1971] AC 508 | An authority may choose between overlapping statutory regimes even if only one triggers compensation. | Key authority supporting The Council’s entitlement to rely on section 80. |
| Sporrong and Lönnroth v Sweden (1983) 5 EHRR 35 | Identifies three “rules” under A1P1: peaceful enjoyment, deprivation, and control of use. | Framework for analysing whether the interference is deprivation or control. |
| Depalle v France (2012) 54 EHRR 17 | Clarifies distinction between deprivation of possessions and control of use. | Used to classify the interference as control of use, not deprivation. |
| James v United Kingdom (1986) 8 EHRR 123 | Compensation is normally required for deprivation, rarely for control. | Supports view that lack of compensation is not fatal where only control is involved. |
| Bruncrona v Finland (2005) 41 EHRR 28 | Elaborates the A1P1 analytical structure. | Referenced in discussion of Strasbourg methodology. |
| Broniowski v Poland (2005) 40 EHRR 21 | Same as above. | Provides further Strasbourg context. |
| Brumarescu v Romania (2001) 33 EHRR 35 | Example of de facto expropriation assessment. | Mentioned when distinguishing deprivation from control. |
| Chassagnou v France (1999) 29 EHRR 615 | Proportionality and “excessive burden” test under A1P1. | Cited but distinguished on its facts. |
| Bugajny v Poland (App No 22531/05, 2007) | Proportionality in land-development context; excessive individual burden. | Used as comparative guidance on “fair balance”. |
| Thomas v Bridgend County Borough Council [2012] QB 512 | Domestic application of Bugajny; compensation exclusion may be disproportionate. | Discussed to illustrate when a statutory compensation gap might breach A1P1. |
| J A Pye (Oxford) Ltd v United Kingdom (2008) 46 EHRR 45 | “Anomalous” results can undermine proportionality. | Referenced in domestic proportionality analysis. |
| Papamichalopoulos v Greece (1993) 16 EHRR 440 | Extreme example of property interference. | Cited in Bugajny; noted by the court. |
| Epping Forest DC v Philcox [2002] Env LR 2 | Effect of certificates of lawfulness under planning law. | Explains current status of immune uses. |
| Pepper v Hart [1993] AC 593 | Limits on using parliamentary materials for interpretation. | Mentioned in discussion of statutory construction. |
Court's Reasoning and Analysis
Statutory construction. The court held that neither section 66(2) nor section 80 can be characterised as the specific or general provision; they are separate powers with overlapping scope, born of different legislative histories. The canon generalia specialibus non derogant therefore did not displace section 80. Under Westminster Bank, an authority may lawfully select the route that avoids compensation, provided the choice is not an abuse of power.
Legislative history. Section 80 traces back to the 1935 Restriction of Ribbon Development Act and was designed to curb unsafe accesses without compensation, whereas section 66(2) derives from nineteenth-century public-health legislation and carries an express compensation provision. Their coexistence in the consolidating 1980 Act reflects historic layering rather than a deliberate hierarchy.
Human Rights Act analysis. Blocking vehicular access was classified as a control of use, not a deprivation, under A1P1. Compensation is not presumptively required for such controls. The statutory exceptions in section 80(3) (protecting accesses with planning permission or pre-1948 origin) were held to be rational, not arbitrary. Consequently, The Council’s reliance on section 80 was proportionate and within the “wide margin of appreciation” afforded in land-use regulation.
Outcome of proportionality test. The absence of compensation did not impose an excessive or disproportionate burden on the Plaintiff. Section 80 could not be read down under section 3 of the Human Rights Act, nor was The Council compelled by section 6 to act differently.
Holding and Implications
Holding: Appeal ALLOWED. The Council may rely on section 80 of the Highways Act 1980 to erect barriers without paying compensation; the contrary declaration of the Court of Appeal was set aside.
Implications: Local highway authorities may choose between overlapping statutory powers even where only one entails compensation, provided the choice is not abusive and remains proportionate under the Human Rights Act. The decision clarifies that interference with vehicular access typically constitutes control of use rather than deprivation of property for A1P1 purposes, and that section 80’s compensation structure is Convention-compliant. No new common-law right was created, but the ruling confirms significant discretion for public authorities in managing highway safety works.