London Borough of Southwark & Anor v Transport for London

On the transfer of GLA roads, “the highway” in article 2(1)(a) of the GLA Roads and Side Roads (Transfer of Property etc) Order 2000 is not confined to the limited surface interest ordinarily vested in a highway authority. Where the former authority held the freehold or another wider estate for highway purposes, that estate transferred to Transport for London, subject to the statutory exclusions and any distinct land no longer held for highway purposes.

Article 2(1)(b)(i) transfers other land held for the purposes of the authority’s highway functions. It requires a functional connection with the GLA road, but does not impose an additional test of necessity or reasonable requirement. The horizontal extent of article 2(1)(a) is fact-specific and extends only to land properly constituting the highway.

The London Borough of Southwark and the City of London Corporation appealed, with permission from Morgan J, against an arbitrator’s award on preliminary questions arising in two related arbitrations under the GLA Roads and Side Roads (Transfer of Property etc) Order 2000. The arbitrator had held that, where the local authorities owned land comprising GLA roads for highway purposes, the transfer could include the whole freehold in the vertical plane, subject to qualifications.

The appeal concerned the meaning and horizontal and vertical extent of “the highway” in article 2(1)(a), the relationship with property transferred under article 2(1)(b)(i), and whether article 2(1)(b)(i) required the property to be necessary or reasonably required for the relevant highway functions.

1. Appeal dismissed. The arbitrator had not erred in law in holding that article 2(1)(a) could transfer the freehold or other wider estate held by a former highway authority for highway purposes. The provision was not limited to the “surface”, namely the determinable fee simple ordinarily vested under section 263 of the Highways Act 1980 and the general law (paras [34]-[40], [54]).
2. The statutory scheme involved the designation of roads as GLA roads, the appointment of Transport for London as highway authority, and the transfer of property. Its purpose was to move the roads, functions and highway-related property into Transport for London’s hands. The words “in so far as it is vested in the former highway authority” conveyed both the nemo dat principle and an intention to transfer land held qua highway authority, whether that consisted of the ordinary surface interest or a wider estate (paras [36]-[39]).
3. The limited vesting ordinarily produced by section 263 and the authorities concerning highway ownership did not define “highway” for the purposes of article 2(1)(a). Secretary of State v Baylis (Gloucester) Ltd was concerned with the ordinary consequences of a highway becoming maintainable at public expense and did not decide the separate question arising where the former authority already held a larger estate (paras [29]-[35]).
4. In the vertical plane, the transfer could include subsoil and airspace forming part of the estate held for highway purposes, unless particular layers or slices had acquired a separate identity or were no longer properly part of the highway. In the horizontal plane, the transfer extended to land properly constituting the highway, but not to land which could not properly be so described. Land adjoining the highway could instead fall within article 2(1)(b), subject to its own conditions. Transport for London did not claim subsoil held merely through ownership of adjoining land ad medium filum (paras [39]-[41], [55]-[56]).
5. Article 2(1)(b)(i) required a factual functional connection: the land had to be held by the former authority for the purposes of its highway functions in relation to the GLA road. The provision did not contain, and the court would not imply, a further requirement that the land be necessary or reasonably required for those functions (paras [57]-[58]).

The appeal was dismissed.

The judgment states that the appeal was brought with permission from Morgan J against an arbitrator’s award on preliminary questions arising in two related arbitrations. The High Court dismissed the appeal.