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With very limited exceptions, not material to this case, no compensation was payable for refusal of permission under the new statutory scheme. Ratio |
Section 4 of the 1935 Act was retained following the repeal of the substantive provisions of that Act (including the compensation provision), but was amended by section 113 of, and Schedule 8 to, the 1947 Act to take account of the new legislative scheme. STA |
The amended section retained the first two exceptions (agricultural fences or gates, and public rights of way) but for the remainder there was substituted a prohibition in terms related to the 1947 Act. STA |
It prohibited use of the section so as to 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 1947, or which was constructed, formed or laid out before the appointed day within the meaning of the s... |
Subject to minor drafting changes, this is the form in which the provision was carried into the Highways Act 1959 (section 85), and now section 80 of the Highways Act 1980. STA |
Section 66 STA |
Section 66(2) has a very different history, dating back to the Public Health Act 1875. STA |
Section 149 included a power for urban authorities to place and keep in repair fences and posts for the safety of foot passengers. STA |
That was expanded to something more like its present form in section 39 of the Public Health Acts Amendment Act 1890 (read as one with the 1875 Act: see section 2). STA |
The 1875 Act contained a general provision giving compensation for damage caused by the exercise of powers under the Act (section 308). STA |
These provisions were replaced by section 67(2) of the Highways Act 1959. STA |
By contrast section 67(1) of the 1959 Act (duty to provide footways) reproduced the effect of a more recent enactment, section 58 of the Road Traffic Act 1930. STA |
Section 67(1) and (2) were re-enacted as section 66(1) and (2) of the 1980 Act. STA |
This different history probably explains why the right to compensation in section 66(8) extends to the effects of works under section 66(2), but not of those under section 66(1). STA |
As this account illustrates, the current Highways Act 1980 is the result of a complex evolutionary history extending over more than 130 years. Ratio |
Against this background, and in spite of the efforts of the consolidating draftsmen, it is not perhaps surprising that it contains a varied miscellany of sometimes overlapping and not always consistent statutory powers. Ratio |
The Ching Garage case shows that the present councils confusion as to the appropriate source of the necessary powers is not without precedent. Ratio |
In that case the councils arguments went through a number of vicissitudes (see p 473), before they settled on the provisions on which they lost at trial. Ratio |
By the time of the appeal these had been overtaken by the coming into force of section 67(2) of the 1959 Act, which was substituted by amendment of their pleadings. Ratio |
Having satisfied themselves that the proposed works fell within that provision, their Lordships were not concerned by the possible overlap with other provisions. Ratio |
Planning immunity Ratio |
It is common ground that the use of the property as an office, although in breach of planning control since 1976, has become immune from enforcement. Ratio |
There is no precise finding as to when the occupants of number 66 began to use the forecourt for parking with direct access to the road, nor what works were carried out at that time. Ratio |
Judge McDowall accepted that by the time Mr Cusack acquired the property (1969) it was in its present state, without a front wall or fence, and further that at some time thereafter the pavement was lowered at that point. Ratio |
He was unwilling to find that it began before 1948. Ratio |
The commencement of use of the access, if incidental to the office use of the property, would not itself have involved a material change of use requiring planning permission. Ratio |
But when works were carried out amounting to formation or laying out of a means of access, they would have amounted to an engineering operation and thus development within the statutory definition. Ratio |
That also would have involved a breach of planning control, but again would long since have become immune from enforcement action. Ratio |
Section 80 provides specific protection for accesses formed since 1947 if authorised by planning permission. Ratio |
The protection does not in terms extend to use of accesses which have become immune from enforcement under the planning Acts. Ratio |
In that respect planning law has moved on since 1947. Ratio |
Immunity and its consequences are now governed by amendments made to the 1990 Act by the Planning and Compensation Act 1991, implementing recommendations made in my own report on planning enforcement (Enforcing Planning Control (HMSO 1989)). Ratio |
Among my recommendations was that a development which had become immune from enforcement should be put on the same footing as a permitted use, and that this should be done by treating it as subject to deemed planning permission. Ratio |
I was concerned that the limbo state described as unlawful but immune was confusing to all but specialists and could create difficulties in other areas of the law, including that of compensation for acquisition of land (under the Land Compensation Act 1961, section 5) (see report pp 69-73). Ratio |
Those recommendations were given effect by a new section 191 of the 1990 Act (Certificates of lawfulness of existing use or development). Ratio |
Section 191(2) provides: For the purposes of this Act uses and operations are lawful at any time if - (a) no enforcement action may then be taken in respect of them (whether because they did not involve development or require planning permission or because the time for enforcement action has expired or for any other re... |
The section enables application to be made to the local planning authority for a certificate to that effect. STA |
It further provides: (6) The lawfulness of any use, operations or other matter for which a certificate is in force under this section shall be conclusively presumed. STA |
(7) A certificate under this section in respect of any use shall also have effect, for the purposes of the following enactments, as if it were a grant of planning permission - (a) section 3(3) of the Caravan Sites and Control of Development Act 1960; (b) section 5(2) of the Control of Pollution Act 1974; and (c) sectio... |
It is to be noted that, apart from those three specific cases, the draftsman did not in terms adopt my proposal that there should be a deemed planning permission whenever development had become immune from enforcement. Ratio |
On the other hand, under subsection (2) lawfulness as such for the purposes of the Act does not depend on the issue of a certificate, which is relevant only as evidence of that status. Ratio |
Nor is lawfulness limited to the three categories for which there is deemed planning permission. Ratio |
As Chadwick LJ explained in Epping Forest District Council v Philcox [2002] Env LR 46, paras 28-30, features common to those three statutes are that they involve regulatory regimes which prevent an occupier of land from using that land for the specified purpose unless he is the holder of a licence; that the regimes are... |
In those cases the fact that the use is lawful would not be enough. Ratio |
There is no indication, however, that the specific provision for those three categories was intended to detract from the generality of the proposition that immune uses must now be regarded as lawful for all planning purposes. Ratio |
Lawful for planning purposes might not necessarily be the same as lawful for the purposes of the Highways Act 1980. Ratio |
However, as has been seen, the effect of the 1947 Act was to substitute the general prohibition on development under the planning Acts for the previous more specific restrictions under highways legislation. Ratio |
Apart from planning control, we have not been referred to any other provisions in highways legislation in force since 1947, which would have precluded Mr Cusack from relying on his common law right of access to the highway. Ratio |
Interpretation of section 80 Ratio |
Consideration of the legislative history does not in my view detract from the natural meaning of section 80 as it appears in the 1980 Act. Ratio |
It may be of some interest in explaining why the specific provision for compensation in the 1935 Act was not retained, following the introduction of general planning control, including control over new accesses. Ratio |
As far as concerned Mr Cusacks property, this had the effect that after the 1947 Act any prospective expectation of creating a direct access to the road was subject to the powers of the highway authority, at any time and without compensation, to prevent its use for highway reasons, unless planning permission was first ... |
In my view, apart from the Human Rights Act 1998, Mr Sauvain is right in his submission that the council is entitled to rely on the clear words of section 80 for the power they seek. Ratio |
There is no express or implied restriction on its use. Ratio |
On the basis of the pre-1998 Act authorities, the fact that section 66(2) may confer an alternative power to achieve the same object, which is subject to compensation, is beside the point. Ratio |
That is clear in particular from the Westminster Bank case (see above). Ratio |
There also the legislation provided two different ways of achieving the councils objective, one under the planning Acts and the other under the Highways Act, only the latter involving compensation. Ratio |
The authority was entitled to rely on the former. Ratio |
Lord Reid (giving the majority speech) said: Here the authority did not act in excess of power in deciding to proceed by way of refusal of planning permission rather than by way of prescribing an improvement line. Ratio |
Did it then act in abuse of power? I do not think so. Ratio |
Parliament has chosen to set up two different ways of preventing development which would interfere with schemes for street widening. Ratio |
It must have been aware that one involved paying compensation but the other did not. Ratio |
Nevertheless it expressed no preference, and imposed no limit on the use of either. Ratio |
No doubt there might be special circumstances which make it unreasonable or an abuse of power to use one of these methods but here there were none. Ratio |
([1971] AC 508, 530) The passage (in the final sentence) also provides an answer to Mr Greens concern that the power might be abused in particular cases, for example, to override specific prohibitions in section 66. Ratio |
Judicial review is not excluded in such circumstances. Ratio |
Mr Green sought to distinguish that case by reference to the speech of Viscount Dilhorne. ARG |
He had referred to section 220 of the Town and Country Planning Act 1962, which provided for the avoidance of doubt that the powers under that Act were exercisable notwithstanding provision in any other enactment for regulating development. ARG |
As Mr Green observed, there is no equivalent to that in section 80. ARG |
However, Viscount Dilhornes reliance on that section was not reflected in the comments of the majority speech, which were expressed in general terms. ARG |
For these reasons, the council is in my view entitled to succeed, unless some additional limitation on their powers can be derived from the Human Rights Act 1998. Ratio |
To that question I now turn. Ratio |
Human Rights Act 1998 Ratio |
In this part of the case, Mr Green relies on article 1 of the First Protocol to the European Convention on Human Rights (A1P1), which provides: Every natural or legal person is entitled to the peaceful enjoyment of his possessions. ARG |
No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by 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 interes... |
In the domestic context A1P1 is given effect by two provisions of the Human Rights Act (HRA). Ratio |
First, section 3 deals with the duty of the court when interpreting legislation. Ratio |
It requires that so far as it is possible to do so legislation must be read and given effect to in a way which is compatible with the Convention rights. Ratio |
Secondly, section 6 deals with acts of public authorities. Ratio |
It provides so far as material: (1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right. Ratio |
(2) Subsection (1) does not apply to an act if (a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or (b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with th... |
Three questions therefore arise: Is the closure of Mr Cusacks access without compensation under i) section 80 compatible with A1P1? ii) If not, (under HRA section 3) is it possible to read section 80 in such a way as to make it compatible? iii) Alternatively, (under HRA section 6(2)(a)) could the authority have avoided... |
Mr Green submits that use of section 80 to deprive Mr Cusack of vehicular access to his own property and the right to park on his own hard-standing, without any compensation, would be a breach of A1P1, which can be avoided by use of section 66(2) to achieve the same end. ARG |
The effect of the Strasbourg caselaw under that article, dating from the leading case of Sporrong and Lnnroth v Sweden (1982) 5 EHRR 35, was summarised by the Grand Chamber in Depalle v France (2010) 54 EHRR 535, 559: The Court reiterates that, according to its case-law, Article 1 of Protocol No 1, which guarantees in ... |
The second rule, in the second sentence of the same paragraph, covers deprivation of possessions and subjects it to certain conditions. PRE |
The third, contained in the second paragraph, recognises that the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest. PRE |
The second and third rules, which are concerned with particular instances of interference with the right to peaceful enjoyment of property, are to be construed in the light of the general principle laid down in the first rule (see Bruncrona v Finland (2004) 41 EHRR 592, paras 65- 69 and Broniowski v Poland (2004) 40 EH... |
Regarding whether or not there has been an interference, the Court reiterates that, in determining whether there has been a deprivation of possessions within the second rule, it is necessary not only to consider whether there has been a formal taking or expropriation of property but to look behind the appearances and i... |
Since the Convention is intended to guarantee rights that are practical and effective, it has to be ascertained whether the situation amounted to a de facto expropriation (see Brumrescu v Romania (1999) 33 EHRR 862, para 76 and Sporrong and Lnnroth v Sweden (1982) 5 EHRR 35, paras 63 and 69-74). PRE |
As that passage makes clear, there is a material distinction between the second rule, relating to deprivation of possessions, and the third (the second paragraph of the article) relating to control of the use of property. PRE |
Mr Greens primary submission is that removing Mr Cusacks common law right of access to the highway is deprivation of a possession within the second rule. ARG |
The significance of that characterization, he says, is that where there is a deprivation of property absence of a right to compensation will only be justified in exceptional circumstances (James v UK (1986) 8 EHRR 123, para 54). ARG |
Alternatively, if deprivation of a frontager's right of access is characterised as a control of his property rights, albeit lawful and in the general interest, the council has not discharged its onus of showing the proportionality of the interference. ARG |
I say at once that I see no basis for his reliance on the second rule. Ratio |
Mr Cusack has not been deprived of any property. Ratio |
Mr Green was unable to point us to any support in the Strasbourg cases for treating a restriction on the form of access as a deprivation of a possession under that rule. Ratio |
On the other hand, as Mr Sauvain concedes, it falls clearly within the third rule as a control of his property. Ratio |
Accordingly, it is in that context that its compatibility with the Convention right must be considered. Ratio |
Mr Green referred us to the decision in Chassagnou v France (1999) 29 EHRR 615, in which it was held that a law effecting the compulsory transfer to a municipal association of hunting rights over the applicants land was a disproportionate burden and thus a breach of the second paragraph of article 1. PRE |
Although it was intended that he would be compensated by the grant of a concomitant right to hunt over other land, this was of no value to him since he disapproved of hunting on ethical grounds (see paras 82-85). PRE |
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