London Borough of Southwark and another v Transport for London

On a statutory transfer between successive highway authorities, “the highway” includes all property in the vertical plane which the former authority held in its capacity as highway authority. The transfer is not invariably confined to the surface, supporting subsoil and necessary airspace forming the zone of ordinary use.

Property held as adjoining owner or for non-highway purposes remains with the former authority. Property acquired for highway purposes passes even beyond the zone of ordinary use, unless appropriated to a non-highway use before the operative date. No presumption determines the capacity in which the former authority held particular property; that fact-sensitive question must be decided from the evidence.

The Greater London Authority Act 1999 reorganised London government and made Transport for London the highway authority for designated GLA roads. The GLA Roads and Side Roads (Transfer of Property etc) Order 2000 transferred specified property and liabilities from the former highway authorities, including the respondent councils.

An arbitration under article 8 determined preliminary issues concerning article 2(1)(a). The arbitrator substantially accepted Transport for London’s case that the transfer included the vertical plane owned for highway purposes. Mann J dismissed the councils’ first appeal, but the Court of Appeal, [2017] EWCA Civ 1220, substantially accepted the councils’ construction.

The central issue was whether “the highway, in so far as it is vested in the former highway authority” transferred every relevant proprietary interest above and below the road, or only the zone necessary for ordinary highway use, maintenance and repair.

1. Appeal allowed unanimously. Lord Briggs gave the judgment, with which Lady Hale, Lord Reed, Lord Carnwath and Lord Lloyd-Jones agreed. Article 2(1)(a) of the GLA Roads and Side Roads (Transfer of Property etc) Order 2000 transfers all parts of the vertical plane vested in the former authority in its capacity as highway authority. The transfer is not invariably limited to the zone of ordinary use.

2. The word “highway” has no single common-law meaning. It may describe physical elements, public rights of passage or a species of real property. Its statutory meaning therefore depends on context. Article 2 was closely modelled on section 265 of the Highways Act 1980, so that provision and its history informed the construction of the article.

3. The principle derived from Tunbridge Wells Corpn v Baird limits automatic statutory vesting under section 263 to the surface, supporting and draining subsoil, and necessary airspace. That limitation responds to the uncompensated expropriation of private property. It does not sensibly govern a transfer between public highway authorities under section 265 or article 2, where the successor assumes the former authority’s responsibilities and should stand in its shoes as owner.

4. Accordingly, property acquired for highway purposes passes even where it extends above or below the zone of ordinary use. Rights held as adjoining owner do not pass. Nor do rights acquired for another purpose, or appropriated to a non-highway purpose before the operative date, whether or not the contemplated development has occurred. This construction avoids an irrational division under which successive highway authorities would own different layers of property formerly held by one authority for highway purposes.

5. The court rejected Transport for London’s proposed strong presumption that all rights in the vertical plane were held in the authority’s highway capacity. The nature, extent and capacity of ownership are fact-sensitive matters for determination from the evidence, without a presumption or predetermined burden flowing from article 2.

6. The court expressed no final view on section 266A of the Highways Act 1980 and no view on lateral-plane issues. Submissions were required on the precise form of the order because the correct interpretation differed slightly from the arbitrator’s and Mann J’s reasoning and the preliminary issues had narrowed.

1. United Kingdom Supreme Court: Allowed Transport for London’s appeal unanimously and displaced the Court of Appeal’s construction. Submissions were required on the precise form of the order.
2. Court of Appeal: In [2017] EWCA Civ 1220, substantially accepted the councils’ case that the transfer was confined to the zone of ordinary use.
3. High Court: Mann J dismissed the first appeal from the arbitrator’s award, substantially accepting Transport for London’s construction.
4. Arbitration: Mr John Male QC determined preliminary issues under article 8 of the GLA Roads and Side Roads (Transfer of Property etc) Order 2000 and substantially accepted Transport for London’s construction, subject to an exception for separately identifiable non-highway layers or structures.