London Borough of Southwark and Another v Transport for London: SC 5 Dec 2018

Question as to the meaning of the GLA Roads and Side Roads (Transfer of Property etc) Order 2000. When the highway was transferred was only the working surfaces, the road surface and the airspace and subsoil necessary for the operation, maintenance and repair of the road , or the full extent of the land; all the airspace above and the subsoil below the surface of the road.
Held: The appeal was allowed. The land transferred was not the narrower definition.
‘Highway’ has no single meaning, but by default the wider meaning was to be used.
article 2(1)(a) transfers to TfL ownership of all that part of the vertical plane relating to a GLA road vested in the relevant council on the operative date, but only to the extent that ownership was then vested in the council in its capacity as former highway authority. That is, in my view, the true meaning of the phrase ‘the highway, in so far as it is vested in the former highway authority’. It follows that:
i) rights held by the Councils in the vertical plane of a highway as adjoining owner, for purposes other than highway purposes, do not pass under article 2(1)(a). This is because they are not held by the Council in its capacity as highway authority.
ii) rights originally acquired for purposes other than highway purposes, or appropriated to those other purposes by the operative date, do not pass under article 2(1)(a). This is so whether or not some non-highway structure has by then been constructed. If acquisition or appropriation for non-highway purposes has occurred by the operative date, it matters not that the relevant purpose has yet to be fulfilled, so that the relevant part of the vertical plane remains undeveloped.
iii) rights originally acquired for highway purposes in the vertical plane, for example by conveyance on compulsory acquisition for highway purposes, do pass under article 2(1)(a), even if they extend beyond the zone of ordinary use, provided that they have not, by the operative date, been appropriated to some non-highway use outside the zone of ordinary use.
iv) All these consequences, and in particular the first, flow from the true construction of article 2, rather than merely by way of TfL’s concession as recorded by Mann J.

Lady Hale, President, Lord Reed, Deputy President, Lord Carnwath, Lord Lloyd-Jones, Lord Briggs
[2018] UKSC 63, [2019] 1 P and CR 14, [2019] RVR 49, [2018] 3 WLR 2059, [2019] PTSR 1, [2019] 2 All ER 271, UKSC 2017/0160
Bailii, Bailii Summary, SC, SC Summary, SC Summary Cvideo, SC 2018 1024 am Video, SC 2018 10 24 PM, SC 2018 10 25 am Video
GLA Roads and Side Roads (Transfer of Property etc) Order 2000
England and Wales
Appeal fromLondon Borough of Southwark and Another v Transport for London CA 4-Aug-2017
The Land of a roadway was to be transferred to TFL. The parties disputed whether there would be transferred the areas adjacent to the surface, or whether it should be the full depth of the earth and to the skies. . .
CitedPowell v McFarlane ChD 1977
Intention to Establish Adverse Possession of Land
A squatter had occupied the land and defended a claim for possession. The court discussed the conditions necessary to establish an intention to possess land adversely to the paper owner.
Held: Slade J said: ‘It will be convenient to begin by . .
CitedTunbridge Wells (Mayor Of) v Baird HL 4-May-1896
The Public Health Act 1875, which by s. 149 vests certain streets in the urban authority, does not vest the subsoil.
Therefore where a local Act authorized the urban authority to erect and maintain ‘in any street or public place, or on land . .
CitedCoverdale v Charlton CA 2-Dec-1878
By an award under an Inclosure Act passed in 1766 a private road E was set out. In about 1818 road E became a public highway. A local board was formed in 1863 and in 1876 the board let the pasturage upon E to the Plaintiff. He thereupon commenced to . .
CitedRolls v Vestry of St George the Martyr, Southwark CA 14-Jun-1880
The plaintiff owned land over which were two old streets. He obtained an order from the Magistrates stopping up the stopping up and diversion of parts in return for new streets matching the proposed area layout. The defendants, in whom the land had . .
CitedTithe Redemption Commission v Runcorn Urban District Council CA 1954
The court considered the effect of a strip of land being designated as a public right of way. Denning LJ said: ‘The statute . . vest[s] in the local authority the top spit, or perhaps, I should say, the top two spits of the road for a legal estate . .
CitedCusack v London Borough of Harrow SC 19-Jun-2013
The landowner practised from property in Harrow. The former garden had now for many years been used as a forecourt open to the highway, for parking cars of staff and clients. Cars crossed the footpath to gain access, and backing out into the road . .
CitedFarrell v Alexander HL 24-Jun-1976
The House considered the construction of a consolidation Act.
Held: It is ordinarily both unnecessary and undesirable to construe a consolidation Act by reference to statutory antecedents, but it is permissible to do so in a case where the . .
CitedGoodes v East Sussex County Council HL 16-Jun-2000
The claimant was driving along a road. He skidded on ice, crashed and was severely injured. He claimed damages saying that the Highway authority had failed to ‘maintain’ the road.
Held: The statutory duty on a highway authority to keep a road . .
CitedFinchley Electric Light Company v Finchley Urban Council CA 11-Feb-1903
Under s. 149 of the Public Health Act, 1875, which provides for the vesting in the urban authority of the streets within their district, the question how much above and below the surface of the street vests in the urban authority is determined by . .
CitedSecretary of State for the Environment Transport and the Regions v Baylis (Gloucester) Ltd; Bennett Construction (UK) Ltd v Baylis (Gloucester) Ltd ChD 16-May-2000
Land once conveyed for the purposes of becoming a highway, became dedicated for that purpose even though no steps were ever taken for its use for that purpose. The registration of a company as proprietor by the Land Registry did not displace the . .

Lists of cited by and citing cases may be incomplete.

Land, Local Government, Transport

Updated: 10 December 2021; Ref: scu.630951