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How deep is your highway?

A recent dispute between Transport for London (TfL) and two London boroughs has resulted in clarification from the Court of Appeal on the depth of highways.

It has been established for over a century that when legislation vests a highway in a highway authority, the authority does not become the freehold owner of that land; its ownership is limited. In terms of depth, the extent of the highway is limited to the surface and the "top two spits" of subsoil (a "spit" being a layer of earth whose depth is equal to the length of the blade of a spade).

The Court of Appeal had to consider whether the wording of the Order transferring responsibility for certain roads in London from the London boroughs to TfL went further than the commonly understood meaning of "highway". TfL claimed that it did, and the result was that the freehold had been transferred to TfL.

The Order vesting the highways in TFL expressed the transfer to be of "the highway, in so far as it is vested in the former highway authority". The dispute centred around the meaning of this. The arbitrator (who initially ruled on the dispute) agreed with TfL – it meant that where the local authorities had owned the freehold, the whole of that freehold had become vested in TfL. The High Court agreed with the arbitrator's interpretation, confirming that in using the words "..in so far as it is vested in the former highway authority", Parliament was intending to vest land held by the highway authority, whether that was a surface, or a wider, holding. The High Court went on to justify its reasoning by commenting that, if the freehold were not to be transferred, it would result in split holdings, with TfL owning the surface and the land below it (and the airspace above) remaining in the local authorities' ownership.

Meaning of  "highway" – Court of Appeal

The Court of Appeal unanimously rejected the High Court's interpretation, saying that the meaning of "highway" was long established by case law. If the vesting Order really meant to transfer the freehold, the use of the word "highway" to do so was "an odd choice of word". There was no good reason why the word "highway" should have a different meaning in this context.

Lord Justice David Richards also gave short shrift to the argument about split holdings, pointing out that this is already commonplace.

The result is that only the surface and necessary sub-soil (the top two spits) is vested in TfL. London boroughs will welcome the decision. Had the views of the High Court been upheld, it would have deprived them of significant landholdings without providing any compensation.

Contributor: Alexandra Holsgrove Jones

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at September 2017. Specific advice should be sought for specific cases. For more information see our terms & conditions.

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