Business owners are being urged to double check their property’s planning permission after a recent Supreme Court ruling backed a council’s right to block off long-standing parking bays and refuse a compensation demand. The “fine print” warning comes from commercial property agents, Prop-Search which claims that thousands of businesses are in danger of having their parking areas blocked by a highway authority; particularly if vehicles need to drive across footpaths or pavements.
Prop-Search surveyor Samantha Jones
“It is often assumed that property fronting onto a highway benefits from common law rights of access,” said Prop-Search surveyor, Samantha Jones. “However a highway authority has a statutory right to prevent access to the public highway without having to pay compensation.” A right, she says, which recently received Supreme Court backing after years of legal wrangling.
In the early 1970s a Harrow solicitor was granted temporary planning permission to use the ground floor of a house as an office. The former front garden, open to the adjoining highway, was covered with hard standing to create a forecourt which his staff and clients used for parking.
To drive on and off the forecourt the cars had to pass over a footpath. When the temporary planning consent ran out in the summer of 1976 access continued and was eventually regarded as lawful.
“Following safety concerns, Harrow Council informed the solicitor that it intended to erect barriers along the road — including outside his property — to prevent vehicles from driving over raised kerbs and footways,” explained Jones. “The barriers would prevent further footpath damage and increase pedestrian safety.”
The solicitor sought an injunction restraining the council from erecting the barriers, which a county court judge refused, by claiming the local authority had the power to erect the barriers under the Highways Act 1980. He ruled that under Section 80 of the Act a council, in certain circumstances, has the power to erect and maintain fences or posts for the purpose of preventing access to a public highway.
The Court of Appeal subsequently ruled in the solicitor’s favour, concluding that Section 80 was not applicable as Harrow Council had a different power available to it under Section 66 of the 1980 Act. A sub-section of which empowers a highway authority to erect and maintain walls, rails and fences to safeguard anyone using the highway. More importantly, unlike Section 80, it requires the authority to pay compensation.
Ruling on the council’s recent appeal, the Supreme Court unanimously upheld Harrow’s right to deny access. The ruling concluded that the business owner had a common law right of access without restriction from any part of his property but added that, in practice, those rights had been much circumscribed by statute. Nor was there a general rule to the effect that payment of compensation was required where action was taken to restrict access.
Announcing the judgement, Lord Carnwath said that the use of a property 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. Vehicular access to the solicitor’s property across the footpath was, therefore, different from the use of a means of access that was authorised by planning permission.
“The moral of this case,” says Jones, “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.”
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