Express dedication of strip adjoining highway – Whether immediate dedication intended – Little use thereafter by public – Whether dedication nevertheless accepted – Title to surface of strip vesting in Secretary of State – Whether interest of Secretary of State binding on later registered proprietor
In 1964 D Ltd owned land in Gloucestershire (the Northway land) that lay to the north of a highway (the A46), then classified as the A438. The land included a 0.77 acre strip that abutted the highway (the strip). In January of that year D Ltd entered into an agreement under seal with the relevant highway authority that recited that, in consideration of the authority carrying out the work of forming the strip as part of the highway (the works undertakings), the landowners ‘hereby forthwith give up and dedicate to the public [for the purpose of improving the highway] all that [strip] to the intent that [the strip] shall be added to and form part of the highway….’. Thereafter the authority arranged for the twice-yearly mowing of part of the strip.
In April the highway was designated as a trunk road. At a later stage a small part of the strip (the improved part) was laid out as a cycle path and footway, which were used to a limited extent by the public. No public use was made of the rest of the strip. In 1996 the improved part was transferred to the Secretary of State, who obtained a separate registered title.
In December 1997 the second defendant, Bennett Construction (UK) Ltd, who had acquired the Northway land earlier that year, sold and conveyed that land to the first defendant.
A contractual dispute relating to the strip arose between the defendants*, and the claimant sought a declaration that the surface to the strip was vested in the Secretary of State as part of the highway. That claim was resisted by the defendants and Tewkesbury Borough Council (which faced a possible third party claim) on the grounds that: (i) no dedication had taken place; (ii) the dedication, if any, had not been validly accepted; and (iii) such title as the claimant did have, being unregistered, was extinguished when the first defendant became the registered proprietor of the Northway land.
Held: Judgment was given for the Secretary of State.
1. There was no case for saying that the intention of D Ltd to dedicate was conditional upon the authority carrying out the agreed works (which were not in fact done). An intention to dedicate immediately could be gathered from “hereby”, “forthwith” and the imperative use of “shall”; Overseas Investment Services Ltd v Simcobuild Construction Ltd [1996] 1 EGLR 49 distinguished.
2. Where a claim was based on implied dedication, there had to be proof of acceptance in the form of actual use by the public before the court could infer that dedication had taken place; see R v Inhabitants of Lordsmere (1850) 15 QB 689; Eyre v New Forest Highway Board (1892) 56 JP 517; Fisher v Prowse (1862) 2 B&S 770. However, that did not mean that such proof was always necessary in the case of an express dedication. Under modern highways legislation, the highway authority, having a statutory duty to assert and protect the rights of the public (see now section 30 of the Highways Act 1980), had the ability to accept a highway on behalf of the public by so agreeing in writing or by passing an appropriate resolution.
3. Contrary to the claimant’s submissions, the authority, in giving the works undertakings, could not have lawfully acted under section 40(2) of the 1959 Act (now section 38(3) of the 1980 Act) as that provision looked to future dedication on completion of works to be carried out by the landowner or on the landowner’s behalf. However, the necessary power to conclude the 1964 agreement could be found in section 71(1) of the 1959 Act (see now section 72(1) of the 1980 Act), which enabled an authority to widen a highway pursuant to an agreement reached with the owner of adjoining land. In any event, as evidence had been given of some use by the public, it would be anomalous to hold that the acceptance did not extend to the entirety; see Tottenham Urban District Council v Rowley [1912] 2 Ch 633. As a result of the acceptance, and by operation of section 228 of the Highways Act 1959, the surface of the strip vested in the highway authority, and subsequently passed to the Secretary of State when the road was re-designated in 1977.
4. The land registration point taken against the Secretary of State relied on section 20 of the Land Registration Act 1925, whereby the registered transferee took his estate free of all interests other than appearing on the register or ranking as overriding interests. In so far as the Secretary of State asserted a “public right” (and hence an overriding interest falling under section 70(1)(a) of the 1925 Act), the defendants argued that the claim was not to the right, but rather to the unregistered estate in the surface of the strip that had been acquired under the 1959 Act. However, it could be deduced from the Court of Appeal decision in Sussex Investments Ltd v Jackson [1993] EGCS 152 that an estate in the land could rank as an overriding interest where the vesting was, so to speak, parasitic on the existence of the public right of way.
5. The court also accepted two alternative submission by the claimant, namely: (i) that the relevant provisions of the 1925 Act must be taken to have been impliedly overridden by the inconsistent provisions of the 1959 Act, which had the clear purpose of vesting highways in those responsible for maintaining them at the public expense (see British American Cattle Co v Caribe Farm Industries Ltd (in receivership) [1998] 1 WLR 1529 and Tithe Redemption Commission v Runcorn Urban District Council [1954] Ch 383); and (ii) that, on a proper application of r 278 of the Land Registration Rules (boundaries), the fact that a road was expressly included in a registered title did not necessarily mean that the registration divested the highway authority of its interest in the surface.
Jonathan Karas and Kate Selway (instructed by the Treasury Solicitor) appeared for the claimant; Thomas Jefferies (instructed by Geisler & Laws) appeared for the first named defendant; Gwilym Harbottle (instructed by Penleys, of Dursley) appeared for the second named defendant, Bennet Construction (UK) Ltd; Alexander Hill-Smith (instructed by Wansbroughs) appeared for Tewkesbury Borough Council.
* Editor’s Note: See the separate summary of Baylis (Gloucester) Ltd v Bennett Construction (UK) Ltd heard together with the above case [2000] PLSCS 97.
