KBC Developments LLP v Wavin Limited & Anor

An agreement under section 38 of the Highways Act 1980 is construed by reference to its terms and its machinery for identifying the land to be adopted. Adoption may include land on which no physical works are carried out, including verges and connecting areas. Where land forms part of an integrated highway intended to connect with a future bridge, the zone of ordinary use may include the airspace and ground reasonably required for that connection. A conveyance granting rights to connect to a proposed road may preserve those rights where the road has not been adopted in a form capable of providing the contemplated connection.

The claimant owned land south-east of a railway and had planning permission for a bridge connecting to Parsonage Way, a road on land owned by Wavin Limited. The road, including a hammerhead, verge and level strip beside the railway, was adopted under a section 38 agreement with Wiltshire Council.

Wavin contended that the level strip had not been adopted, or that the adopted highway did not extend vertically far enough to permit construction of the bridge. KBC alternatively relied on rights reserved by a 1992 conveyance. The court determined the horizontal and vertical extent of the adoption and, alternatively, the proper construction of the conveyance.

1. Horizontal extent of adoption. The section 38 agreement was not limited to land covered by the earlier planning permission. Its clauses provided an internal mechanism by which drawings, plans and specifications were submitted and approved, and clause 10(iii) identified the land to be adopted by reference to the approved plans. The agreement did not incorporate the planning permission as a limit on adoption. The expression highway works was also broad enough to include surrounding land on which no physical works were undertaken.

2. The adoption plan identified the whole area between the end of the tarmac hammerhead and the railway boundary, including the level strip, as adopted highway. The level strip formed part of the same intended connection as the hammerhead and verge. There was no basis for distinguishing it from those areas.

3. Vertical extent. The adopted highway included the zone of ordinary use. The level strip was adopted as part of an integrated facility whose purpose was to connect Parsonage Way with the proposed bridge. Its ordinary use therefore included such airspace, and ground beneath if necessary, as enabled the proposed extension and bridge to be built. Its use was not confined to the footpath use existing at the date of adoption.

4. Conveyance. Alternatively, the “New Road” in the conveyance meant the road and footways to be constructed to full adoption standards in a form enabling the retained land to connect with Parsonage Way. The rights to pass over and connect to it were intended to operate seamlessly and ceased on adoption only because they would then be unnecessary. If the level strip had not been adopted, the New Road had not been adopted for that purpose and the right to connect remained.

5. KBC was entitled to the declaration that there was no gap between Parsonage Way and the boundary with Network Rail’s land, and could connect the proposed railway bridge to Parsonage Way.