London Borough of Southwark & Anor v Transport for London

When legislation transfers a highway to a new highway authority, the ordinary common-law meaning generally limits the transfer to the surface and the sub-soil needed for the highway’s use and maintenance. It does not ordinarily transfer the transferor’s entire freehold title. In construing the GLA Roads and Side Roads (Transfer of Property etc.) Order 2000, the statutory contrast between highway and land, the parallel scheme in the Highways Act 1980, and the consequences of later designation or de-designation confirmed that limited meaning. The purpose of making TfL highway authority did not justify transferring more property than was necessary.

The Greater London Authority Act 1999 created the Greater London Authority and made Transport for London the highway authority for designated GLA roads. Under the GLA Roads and Side Roads (Transfer of Property etc.) Order 2000, property connected with GLA roads was transferred from the former highway authorities to TfL.

Disputes between TfL and the London Borough of Southwark and the City of London were referred to arbitration. The arbitrator decided that the entire relevant interest of each council passed to TfL. On appeals under the Arbitration Act 1996, Mann J dismissed the appeals. The central issue before the Court of Appeal was whether article 2(1)(a) transferred the councils’ entire freehold interests or only the surface and necessary sub-soil of the highways.

The appeal was allowed. Lord Justice David Richards gave the leading judgment. Lord Justice McCombe and Lord Justice McFarlane agreed.

1. Meaning of highway. The common-law meaning of a highway is a public way over which the public have rights of passage. Where legislation vests a highway in a highway authority, the transfer ordinarily includes only the surface and such sub-soil as is necessary for the control, protection and maintenance of the highway. It does not include the entire freehold interest merely because the former authority owned it.
2. Construction of article 2. Article 2(1)(a) transferred to TfL the highway so far as vested in the former highway authority. The word highway had its established and restricted meaning. The words identifying the extent of the former authority’s vesting did not enlarge that meaning. Article 2(1)(b), by contrast, referred to land and separately transferred ancillary land held for highway functions. The distinction supported a limited transfer under article 2.
3. Statutory context. The parallel provisions of the Highways Act 1980, particularly sections 263 and 265, used highway consistently with its common-law meaning. Section 266A provided a further comparison: on a section 14B transfer, ancillary land moved under section 266A, while the highway itself vested under section 263. The absence of any provision transferring back a council’s supposed residual freehold interest on de-designation also pointed against TfL’s construction.
4. Authorities and purpose. The authorities, including The Mayor etc of Tunbridge Wells v Baird [1896] AC 434, Vestry of St Mary, Battersea v County of London [1899] 1 Ch 474, Finchley Electric Light Co v Finchley UDC [1903] 1 Ch 437 and Tithe Redemption Commission v Runcorn UDC [1954] Ch 383, established the restricted approach. The statement in Secretary of State for the Environment v Baylis (2000) 80 P&CR 324 was obiter but correct. The statutory purpose of making TfL highway authority did not justify depriving the councils of more property than necessary, without compensation. The arbitrator’s award and Mann J’s decision were therefore set aside to the extent necessary, and the appeal was allowed.

1. Court of Appeal (Civil Division): appeal allowed on 4 August 2017, [2017] EWCA Civ 1220.
2. High Court of Justice, Chancery Division: Mann J dismissed the councils’ appeals under the Arbitration Act 1996 from the arbitrator’s award.
3. Arbitration: John Male QC’s award dated 27 November 2014 determined that the councils’ entire relevant interests transferred to TfL.