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Supreme Court rejects Court of Appeal's interpretation of 'highway'

The Supreme Court has ruled that the extent of a highway is not always restricted to the 'top two spits'. The decision related to the particular facts of a case, in which the transfer of roads was between highways authorities.

Local authorities will need to consider the impact of the decision when transferring land to another highways authority.

What was the case about?

The case of London Borough of Southwark v Transport for London concerned the wording of the Order transferring responsibility for certain roads in London from the London boroughs to Transport for London (TfL). The question was whether the Order transferred more than what is commonly understood to fall within the meaning of "highway". Highway is generally understood to include 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) and such airspace above the highway as is required for the public to use it. This area was referred to by the Supreme Court as the 'zone of ordinary use'.

What did the Order say?

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…for the purposes of their highway functions in relation to the GLA road". 

The dispute

The dispute was long-running. The arbitrator (who initially ruled on the dispute) agreed with TfL's stance – the effect of the Order was 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 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. The result was that only the surface and necessary sub-soil (the top two spits) was vested in TfL.

What did the Supreme Court decide?

The Supreme Court unanimously disagreed with the Court of Appeal's interpretation. Lord Briggs stated that "article 2(1)(a) transfers to TfL ownership of all that part of the vertical plane relating to a GLA road vested in the relevant council on the operative date, but only to the extent that ownership was then vested in the council in its capacity as a former highway authority."

What does this mean for London boroughs?

The Supreme Court's view was that there was no reason why the extent of the property being transferred between two public highway authorities should be restricted when one was effectively stepping into the shoes of the other.

The court's view seemed to be that, rather than losing land, the former authority is being relieved of its responsibilities for operation, maintenance and repair. However, Lord Briggs did acknowledge that there may be cases where the "value of the transferred ownership of the vertical plane exceeds the financial burden of the responsibilities, eg where the vertical plane outside the zone of ordinary use has development value."

The decision was very fact-specific and looked at the wording of the particular Order. Local authorities affected by this Order, or similar enactments, should ensure that they know exactly what is being transferred. This can be complex and advice from an expert should be sought. TLT has extensive experience in highways issues. If you would like to discuss any issues, please get in touch.

Contributor: Alexandra Holsgrove Jones

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at December 2018. Specific advice should be sought for specific cases. For more information see our terms & conditions.

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