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An exacting approach was needed where, in such a case, there was more than one defender. ARG |
The court had to have regard to the fact that the Procurator Fiscal was not involved in the first crave at all. ARG |
The guiding principle, where an objection to competency is taken on these grounds, is whether the way the action is framed is likely to lead to manifest inconvenience and injustice. Ratio |
The court must, of course, seek to be fair to all parties. Ratio |
It must take a pragmatic approach to the question whether the way the case is presented is so complex and disconnected that, despite the opportunities that exist for case management, it will not be possible to conduct the case in a way that meets the requirements of justice. Ratio |
The same is true if a motion is made for two actions to be heard together, or for two actions to be conjoined. Ratio |
Each case will have to be looked at on its own facts. Ratio |
There is no absolute rule one way or the other, so long as the rule which says that it is incompetent for a pursuer to ask for a decree in a lump sum for separate wrongs is not broken. Ratio |
Rules of procedure should, after all, be servants, not masters, in matters of this kind. Ratio |
An examination of the pleadings in this case shows that the two claims, although separate, are interconnected. Ratio |
The averments in articles 2 to 6 set out the basis for the claim in the first crave. STA |
Articles 8 to 12 set out the basis for the claim in the second crave. STA |
The basis for each claim is, in that respect, separate from each other. Ratio |
But article 8 begins by referring to the subject matter of the appellants complaint, which was his treatment by the Strathclyde constables, and in article 10 it is said that the acts and omissions of the Complaints Branch and the Procurator Fiscal were incompatible with the appellants right to an investigation of his c... |
It is plain that the case made in articles 8 to 12 cannot proceed to proof without leading the appellants evidence about his treatment at the hands of the Strathclyde constables. Ratio |
He will have to give evidence on that same matter too in support of the first crave. Ratio |
It would be inconvenient, and quite possibly unjust, to require him to give evidence about it twice over in two separate actions on two separate occasions. Ratio |
The fact that the Procurator Fiscal is not concerned in the first crave is not likely to lead to any practical difficulties of case management, and certainly not to an injustice. Ratio |
Lord Clarke was right to refer in para 13 of his opinion to the need to avoid undue complexity and to keep good order in litigation. Ratio |
But the pleadings in this case are not unduly complex, and good order in litigation favours the two claims being heard together. Ratio |
They are interconnected both in law and in fact, and it would be in the interests of justice and more convenient for them not to be separated. Ratio |
For these reasons I would hold that, as the objection that was taken to the competency of the action as a whole was not well founded, it is open to this court to differ from the Extra Division on this issue too and reject the objection. RPC |
Conclusion RPC |
I would allow the appeal and recall the Extra Divisions interlocutor. RPC |
As there is no plea in law directed to this issue, I would find that the action is competent. RPC |
The case will be returned to the Inner House for a hearing of the appeal against the Sheriff Principals interlocutor. RPC |
Since 1969 Mr Cusack has practised as a solicitor at 66 Station Road, Harrow (the property). FAC |
Station Road, part of the A409, is a single carriage road in each direction flanked by a pedestrian footway. FAC |
At some unknown date the former front garden was turned into a forecourt open to the highway, which has since then been used for parking cars of staff and clients. FAC |
This involves cars crossing the footway to gain access, and backing into the road when leaving. FAC |
The house had been built in around 1900 as a dwelling. FAC |
In 1973 a personal permission was granted on appeal to Mr Cusack to use the ground floor as offices, subject to a condition requiring cessation by 31 August 1976. FAC |
It was noted that the ground floor had been used for that purpose for some time, and permission was only sought for a temporary period to enable Mr Cusack to continue his work in the local court. FAC |
One of the objections had related to traffic generation, but the inspector did not think that use of these rather limited premises has added materially to traffic hazard over the last two years. FAC |
Following the expiry of that permission the use as an office has continued and has become established in planning terms. FAC |
The present dispute began in January 2009, when the London Borough of Harrow (the council), as highway authority, wrote to Mr Cusack asserting that the movement of vehicles over the footway caused danger to pedestrians and other motorists. FAC |
In March 2009 he was informed that the council were planning to erect barriers from 36 to 76 Station Road to prevent vehicles from driving over raised kerbs and footways. FAC |
After some initial confusion as to the statutory basis for their proposed action, they settled on section 80 of the Highways Act 1980. FAC |
Mr Cusack began proceedings in the county court for an injunction to prevent the erection of the barriers outside his house. FAC |
Judge McDowall and on appeal Maddison J found in favour of the council, but their decisions were reversed by the Court of Appeal. FAC |
Pursuant to an undertaking given by the council to the county court, no barriers have yet been erected outside number 66, although they have been erected outside some other adjoining properties. FAC |
Apart from statute, Mr 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 (see Marshall v Blackpool Corporation [1935] AC 16, 22 per Lord Atkin). Ratio |
In practice those rights have been much circumscribed by statute. Ratio |
As Lord Radcliffe said in Ching Garage Ltd v Chingford Corporation [1961] 1 WLR 470, 478: 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, ... |
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 ... |
As that case also shows, although many of the powers conferred by the Acts are subject to payment of compensation, there is no general rule to that effect. Ratio |
As Lord Radcliffe said in the same case (p 475), the right to compensation is a matter of law not concession: 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; and if they have to pay compensation... |
It is not now in dispute that the council has statutory power to do what it did. Ratio |
The Court of Appeal declared that it is not entitled to proceed under section 80 of the Highways Act 1980, but was so entitled under section 66(2). RLC |
The latter declaration is not under appeal. Ratio |
The difference lies in whether compensation is payable. Ratio |
Statutory provisions Ratio |
I turn to the relevant sections. Ratio |
Section 66 (in a group of sections headed Safety provisions) provides: STA |
Footways and guard-rails etc for publicly maintainable highways (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 th... |
(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. STA |
(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. STA |
(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. STA |
(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. STA |
Section 80 (in a group headed Fences and boundaries) provides: Power to fence highways (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 accorda... |
(2) A highway authority may alter or remove a fence or post erected by them under this section. STA |
(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 und... |
Reference was also made in earlier correspondence, and in argument before us, to other powers in the Highways Act. Ratio |
They include the power to stop up private means of access subject to compensation (sections 124, 126), and the power to create crossings for, or impose conditions on the use of, accesses onto the highway (section 184). Ratio |
Apart from providing further illustrations of the wide range of sometimes overlapping powers available to authorities under the Act, they appear to throw no useful light on the issues we have to decide. Ratio |
The Court of Appeal Ratio |
The Court of Appeal accepted the submission of Mr Green, for Mr Cusack, that viewed in the context of the structure of the Act as a whole, the appropriate power for what the council wanted to do was section 66 not section 80. ARG |
As Lewison LJ recorded his submission: Section 66(2) applies where the highway authority consider that the erection of posts etc is necessary for the purpose of safeguarding persons using the highway. ARG |
This is a much more specific reason for invoking a statutory power than the more nebulous statement of purpose in section 80. ARG |
Indeed this is precisely the reason, according to the council, why it wishes to erect barriers across the forecourt of 66 Station Road. ARG |
Lewison LJ found support for that submission in the principle that in statutory construction the specific overrides the general - generalia specialibus non derogant (see eg Pretty v Solly (1859) 26 Beav 606). ARG |
In his view, the councils proposed action and the reason for taking it fall squarely within section 66(2), and accordingly section 80 did not apply to the facts of the case (para 21). ARG |
He considered an alternative argument based on section 3 of the Human Rights Act 1998, but did not think that argument took Mr Cusacks case any further (para 27). ARG |
In this court Mr Sauvain for the council challenges that conclusion. ARG |
There is no justification, he says, for application of the general/specific principle where there is no conflict between the two provisions. ARG |
Although they may overlap, they are provided for different purposes and apply in different situations. ARG |
Where the council has two alternative statutory methods of achieving the same objective, it is entitled to adopt the one which imposes the least burden on the public purse (Westminster Bank Ltd v Minister of Housing and Local Government [1971] AC 508, 530). ARG |
Whether compensation is payable depends on the particular statutory provision. ARG |
Mr Green, as I understood his arguments in this court, relied less on the general/specific principle as such, than on a purposive interpretation of the statutory provisions in their context. ARG |
Although he put his arguments in a number of ways, the common theme was that the broad, unfettered power asserted by the council, without the protection of compensation, was irreconcilable with the general scheme of the Act and the pattern of other comparable provisions. ARG |
In particular the councils construction of section 80 would enable it to override the safeguards provided in other sections. ARG |
In particular, it would deprive section 66(2) of most of its apparent content, and, if applied to footpaths and bridleways, would enable it to bypass the prohibition on the use of section 66 to obstruct a private access (section 66(3)(5)). ARG |
With respect to the Court of Appeal, I am unable to see how the general/specific principle assists in this case. Ratio |
I see no reason to regard either power as more specific or less general than the other. Ratio |
It is true that section 66(2) is directed to a specific purpose (safeguarding persons using the highway), but the powers are defined in relatively wide terms, not necessarily related to private accesses. Ratio |
The powers in section 80 are expressed in narrower terms, related specifically to the prevention of access to an existing or future highway. Ratio |
Although there is no express mention of safety as a purpose, it is implicit that the section must be used for purposes related to those of the Act, which of course include, but are not necessarily confined to, highway safety. Ratio |
Before considering Mr Greens more general submissions it is necessary to say something about the legislative background of the relevant provisions. Ratio |
Legislative history Ratio |
Section 80 STA |
It is of interest, though hardly unexpected, that highway safety was one of the purposes referred to when the predecessor of section 80 was first introduced as part of a statute restricting ribbon development (Restriction of Ribbon Development Act 1935, section 4). FAC |
Mr Sauvains researches have revealed that the then Minister (Mr Hore-Belisha MP better known perhaps for his beacons) described the objects of the new powers as being - to minimise the present dangers to life and limb which result from the erection of houses and buildings with their own means of access at innumerable a... |
(Hansard (HC Debates), 29 July 1935, col 2335) FAC |
The 1935 Act imposed a general restriction on the construction, formation or laying out without the consent of the highway authority of any means of access to or from various categories of road, including classified roads (sections 1, 2). STA |
Where such restrictions were in force on any road, section 4 enabled the highway authority to erect fences or posts for the purpose of preventing access except at places permitted by them. STA |
The section contained exceptions to prevent interference with agricultural fences or gates, or obstruction of public rights of way, and also to prevent obstruction of any means of access formed either before the date on which the restrictions were brought into force, or with the consent of the highway authority thereaf... |
The Act (section 9) contained provision for compensation for diminution in value caused, not by the erection of the fences as such, but by the prohibition on the formation of new accesses resulting from the restrictions imposed by sections 1 and 2. STA |
The main provisions of the 1935 Act (including sections 1, 2 and 9) were repealed by the Town and Country Planning Act 1947, at the same time as the introduction of universal planning control, which has continued under successive enactments to the present day (now the Town and Country Planning Act 1990). Ratio |
The restrictions on ribbon development were in effect subsumed into the general prohibition of development other than with planning permission. Ratio |
For the purposes of the planning Acts, the formation or laying out of means of access to highways was included in the definition of engineering operations and was thus treated as development requiring planning permission (see the 1990 Act, sections 55(1), 336(1)). Ratio |
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