Solicitor loses Supreme Court battle over office car park

A solicitor has lost a battle at the Supreme Court over a council decision to put up a barrier blocking access to his firm's car park.

Patrick Cusack, founder of Patrick J Cusack & Co in Harrow, north London, launched legal proceedings after the council threatened to put barriers preventing people driving over a footpath to park in front of the offices.

The Supreme Court heard that Cusack bought the building as a house and later obtained planning permission to use the ground floor as offices.

Harrow council wrote to him in 2009, stating that the "movement of vehicles over the footway" caused danger to pedestrians and other drivers and said it was planning to erect barriers "to prevent vehicles driving over raised kerbs and footways."

Cusack applied for an injunction, but both the county court and the High Court rejected the application. The council gave an undertaking not to put up barriers until the legal proceedings were over.

However, the Court of Appeal declared that it was not entitled to proceed under Section 80 of the Highways Act 1980, but was entitled to under Section 66(2), which requires a highway authority or council to pay compensation to anyone who 'sustains damage' as a result of measures to protect pedestrians.

Giving the leading judgment in Cusack v London Borough of Harrow [2013] UKSC 40, Lord Carnwath (pictured) said it "not now in dispute" that the council had the statutory power to put up the barriers.

"The difference lies in whether compensation is payable," he said.

Lord Carnwath said Cusack's QC, Patrick Green, argued that Article 1 of the First Protocol to the ECHR required Section 80 to be used so that Cusack could be given compensation.

However, Lord Carnwath said the question must be answered mainly "by reference to the balance drawn by section 80 itself, allowing for the wide margin of appreciation allowed to the national authorities".

He went on: "There may be room for argument as to where the line in section 80 should have been drawn, but the compatibility of the section is not the issue. Given the availability of the power as a legitimate means of controlling use of a private access in the public interest, its use in the present circumstances was in my view neither an abuse of the council's powers nor outside the boundaries of the discretion allowed by the Convention."

Lord Carnwath allowed the council's appeal. Lord Neuberger agreed, for his own reasons. He said that Article 1 of the First Protocol "does not carry with it a general rule that, where the state seeks to control the use of property, and could do so under two different provisions, which have different consequences in terms of compensation, it is obliged to invoke the provision which carries some (or greater) compensation."

Lords Sumption, Wilson and Mance agreed.