It is often assumed that property fronting onto a highway benefits from common law rights of access says commercial property agent Prop-Search. However, a recent court case may concern property owners in demonstrating how a highway authority has a statutory right to prevent access to the public highway without having to pay compensation.
In the case of Cusack v London Borough of Harrow, Mr Cusack, a solicitor, had practised at a property that was originally built as residential, since 1969. He obtained temporary planning permission to use the ground floor of the property as an office until August 1976 – the use of the property continued and is now to be regarded as lawful. The former front garden had been covered with hard standing to create a forecourt open to the adjoining highway and Cusack, his staff and clients had used the forecourt for parking.
The adjoining highway was a single carriage road flanked by a pedestrian footway. To park in the forecourt required the cars to be manoeuvred over the footway and, when exiting, to reverse over the footway.
Samantha Jones, a Surveyor at Prop-Search, comments: “Following concerns Harrow Council informed Cusack that the movement of vehicles over the footway caused danger to pedestrians and other motorists, and that it planned to erect barriers along the road – including outside his property – to prevent vehicles from driving over raised kerbs and footways. The barriers would prevent further footpath damage and increase pedestrian safety.”
Cusack sought an injunction restraining the council from erecting the barriers. A county court judge refused, concluding that Harrow had power to erect the barriers under Section 80 of the Highways Act 1980 – this permits a highways authority in certain circumstances to erect and maintain fences or posts for the purpose of preventing access to a public highway.
Cusack appealed and The Court of Appeal ruled in his favour, concluding that Section 80 was not applicable as Harrow had a different power available to it under Section 66(2) of the 1980 Act. This section empowers a highway authority to erect and maintain walls, rails, fences and the like if necessary for the purpose of safeguarding persons using the highway. Importantly, it also requires, unlike Section 80, the authority to pay compensation to Cusack.
The Supreme Court has now unanimously upheld Harrow’s appeal. Giving the lead judgment, Lord Carnwath said Cusack, as owner of property fronting on to the highway, would have had a common law right of access without restriction from any part of the property. However in practice those rights had been much circumscribed by statute. He added that there was no general rule to the effect that payment of compensation was required where action was taken to restrict access.
Lord Carnwath said the case fell in the general field of land development and town planning, in which the state was allowed a wide margin of appreciation. It was also held that a use of property that was immune from planning enforcement measures, and was therefore to be regarded as lawful under section 191(2) of the Town and Country Planning Act 1990, was not to be treated for all purposes as being the subject of a deemed planning permission. Cusack’s use of the vehicular access to his property via the footpath was, therefore, different from the use of a means of access that was authorised by planning permission.
Samantha Jones concludes: “The moral of this case is that if a landowner does not benefit from express planning permission for access to a highway, there is a risk that not only will the access be closed by the Highways Authority, but that the landowner will also have no entitlement to compensation.”
