The Supreme Court decided how much of a London road passes to Transport for London when it becomes the highway authority. The words transferring “the highway, in so far as it is vested in the former highway authority” carry all rights in the vertical plane held by the former authority in that capacity, and are not confined to the limited zone needed for ordinary use, repair and maintenance. Transport for London’s appeal was allowed.
The Greater London Authority Act 1999 reorganised London government and made Transport for London the highway authority for roads designated as GLA roads. The GLA Roads and Side Roads (Transfer of Property etc) Order 2000 transferred specified property and liabilities from the former local highway authorities, including the London Borough of Southwark and the City of London Corporation, to Transport for London. The dispute, referred to arbitration under the Order, concerned article 2(1)(a): whether “the highway, in so far as it is vested in the former highway authority” transferred everything owned within the vertical plane of the road, or only the slice required for its operation, maintenance and repair.
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The competing constructions
Transport for London said that the Order was intended to place it in the former authorities’ shoes, so that whatever part of the vertical plane they owned on the operative date passed to it. The councils said that the transfer, like other statutory vesting provisions, was limited to the property necessary for highway functions. That limitation is the Baird principle, developed in nineteenth-century cases including Tunbridge Wells Corporation v Baird: automatic vesting confers only the surface, sufficient supporting and draining subsoil, and enough airspace for public use and the authority’s maintenance and supervision—the “zone of ordinary use.” The arbitrator and Mann J broadly accepted Transport for London’s case, subject to qualifications; the Court of Appeal accepted the councils’ case.
Why the histories of the provisions matter
Article 2 was modelled on section 265 of the Highways Act 1980, which provides for transfers when a highway becomes or ceases to be a trunk road. Section 263 of the same Act, dealing with automatic vesting of a publicly maintainable highway, has a different ancestry and purpose. Automatic vesting takes rights from private owners without compensation and is therefore limited to what is necessary. A transfer between successive highway authorities does not raise the same concern: it moves rights already held by one public authority to its successor.
The word “highway” has no single common-law meaning and is not usefully defined for this purpose. In a statutory formula it takes its meaning from context. Reading the same limitation into both section 263 and section 265, or into article 2, would also make the qualifying words “in so far as it is vested in the former highway authority” redundant, because section 263 already vests the zone of ordinary use.
What passes
Lord Briggs, with whom the other members of the Court agreed, held that article 2(1)(a) transfers all of the vertical plane relating to a GLA road that was vested in the relevant council on the operative date, but only so far as it was vested in the council in its capacity as former highway authority. Rights held merely as adjoining owner, including rights extending to the centre line, do not pass. Rights acquired for, or by the operative date appropriated to, non-highway purposes do not pass, whether or not a structure has yet been built. Rights originally acquired for highway purposes do pass even beyond the zone of ordinary use, unless appropriated to a non-highway use outside that zone by the operative date.
This construction avoids splitting one authority’s highway ownership between two highway authorities without a rational purpose. Some layering remains possible where rights are held in another capacity, such as adjoining ownership or another statutory function, but that division has a reason. The financial benefit to ratepayers of being relieved of highway responsibilities is the counterpart of transferring property held in the highway-authority capacity; the meaning of the provision cannot vary according to whether particular airspace or subsoil has development value.
The Court did not accept a presumption that all rights vested in the former authority were held in its highway capacity, nor a burden on the councils to prove otherwise. Resolving ownership in central London is fact-sensitive. The argument concerned the vertical plane, and the Court expressed no view about lateral boundaries.
Verdict: The Court unanimously allowed Transport for London’s appeal. The transfer covered what the councils held in their capacity as highway authorities, including above and below the road surface. The Court invited submissions on the precise order.
Source: London Borough of Southwark and another v Transport for London [2018] UKSC 63
