In an important ruling for residential and commercial property owners – particularly those who enjoy the benefit of off-street car parking – the Supreme Court has defined the circumstances in which local authorities will be required to pay compensation for the erection of barriers preventing or restricting access to the public highway.
A solicitor who had practised from part of a residential property on a main road since 1969 had converted the front garden of the premises into an off-street parking area for clients and staff. The local authority subsequently decided that the movement of vehicles across the footpath presented a danger to pedestrians and other motorists and resolved to erect barriers preventing access to the highway.
The County Court had refused to grant the solicitor an injunction restraining erection of the barriers on the basis that the council had power to carry out the works under section 80 of the Highways Act 1980, which permits a highway authority in certain circumstances to erect and maintain fences or posts for the purpose of preventing access to a public highway.
The Court of Appeal subsequently held that section 80 was not applicable because the council had authority to erect the barriers under section 66(2) of the Act, which empowers a highway authority to erect and maintain walls, rails, fences etc. if necessary for the purpose of safeguarding persons using the highway and (unlike section 80) would require compensation to be paid to the solicitor.
The Supreme Court noted that the owners of property adjoining a highway have a common law right of access to the highway, without restriction, from any part of his or her property. However, in allowing the council’s appeal, the Court noted that that right had been greatly limited by statutory provisions and that there is no general right to compensation when action is taken by a public authority to restrict a property owner’s right of access to an adjoining highway.
The council was entitled to rely on the clear wording of section 80 in order to erect barriers in front of the property and it mattered not that it could have opted to employ section 66(2) to achieve the same objective. The Human Rights Act 1998 also did not preclude the council from relying on section 80 because the exercise of the power therein involved no breach of the solicitor’s right to peaceful enjoyment of his property under article one of the First Protocol to the European Convention on Human Rights.
The erection of barriers in front of the property would be a control of the use of property, not a deprivation of property, and any interference with the solicitor’s rights had to be weighed against the public interest in effective land development and planning control. The mere fact that another statutory route was available to the council and that it requires the payment of compensation did not itself lead to the conclusion that the council’s reliance on section 80 was disproportionate.