Highways – Transport for London – Vesting order – Arbitrator determining preliminary questions concerning vesting of highways in appellant Transport for London – Arbitrator deciding preliminary issues in favour of appellant – High Court upholding decision – Court of Appeal allowing appeal of respondent local authorities – Whether under vesting order appellant taking surface of highway or whole of freehold vertically and horizontally – Appeal allowed
The respondent local authorities appealed against a decision of the High Court on preliminary issues raised in two similar arbitrations under the GLA Roads and Side Roads (Transfer of Property etc) Order 2000. That order provided for the vesting of certain highway property in connection with the re-ordering of responsibilities for highways on the creation of the appellant and its assumption of responsibility as a highway authority for certain roads in London.
The dispute was as to the extent of the vesting by virtue of the expression “the highway” in article 2(1)(a) of the Order. The respondents were highway authorities for what were now Greater London Authority (GLA) roads in their respective areas. In some parts of the highways, the respondents owned not merely the top part of the soil, but had full title to the whole of the freehold.
The essence of the dispute was whether, under the vesting order, the appellant took merely the surface of the roads or the whole of the freehold, vertically and horizontally. An arbitrator determined that the effect of the transfer order was to transfer the entire interest of the local authorities concerned (subject to such parts as had been appropriated to other uses) to the appellant. The respondent appealed unsuccessfully against the arbitration to the High Court: [2015] EWHC 3448 (Ch); [2015] PLSCS 348. The Court of Appeal adopted a narrower position. It considered that the word “highway” in article 2(1)(a) must have been intended to carry the same meaning as it had at common law, and in relation to section 263 of the Highways Act 1980. Thus, the Court of Appeal held that only the zone of ordinary use had transferred to the appellant: [2017] EWCA Civ 1220. The appellant appealed to the Supreme Court.
Held: The appeal was allowed.
(1) The word “highway” had no single meaning in the law but it was a way over which the public had rights of passage, whether on foot, on horseback or in (or on) vehicles. A basic feature of the conveyance or transfer of freehold land by reference to an identified surface area was that, viewed in the vertical plane, the transferee acquired ownership not only of the slice on the surface but of the whole of the space above it and the ground below it. However, the decision of the House of Lords in Tunbridge Wells Corporation v Baird [1896] AC 434 established that the successive statutory provisions for the automatic vesting of proprietary interests in highways in the bodies responsible for their maintenance and repair operated in a much more limited way than would a simple conveyance or transfer of the freehold (the Baird principle). Such a transfer was limited to the road surface, the subsoil immediately beneath it and airspace sufficient to enable use and enjoyment by the public and maintenance by the highway authority.
The limits set by the Baird principle reflected concerns about expropriation of private property without compensation resulting from statutory vesting. However, neither article 2 of the Order nor section 265 of the 1980 Act were governed or constrained by the Baird principle. Article 2(1)(a) transferred to the appellant ownership of all that part of the vertical plane relating to a GLA road vested in the respondents on the operative date, but only to the extent that ownership was then vested in the respondents in their capacity as former highway authorities. That was the true meaning of the phrase “the highway, in so far as it is vested in the former highway authority”.
(2) There was no single meaning of highway at common law. In the present case, it was used as the label for a species of real property. When used within a statutory formula, the word necessarily took its meaning from its context. Given the different origins of, and purposes served by, section 263 and section 265 of the 1980 Act, the word “highway” used in both provisions could not be given the same meaning. There was no reason why the Baird principle should apply so as to restrict the nature or extent of property being transferred between two public highway authorities, one of which was stepping into the shoes of the other. The only limitation to be imposed was one which restricted the rights transferred to those enjoyed by the former highway authority in its capacity as such.
(3) No rational purpose was served by two public bodies owning different layers of what was formerly owned by one single public body. In every case of a transfer between highway authorities, where the transposition of the settled meaning of a word from one section to another section of a complex consolidating statute produced an irrational result, that was a powerful reason for treating the word as having different meanings in those different contexts. Furthermore, although article 2 only had effect in London, section 265 had effect in urban and rural areas alike.
(4) Concerns about expropriation were unfounded. In every case of a transfer between highway authorities, whether under section 265 or article 2, the former authority was being relieved of its responsibilities for operation, maintenance and repair of the relevant highway, and all associated liabilities (subject to certain exceptions). The transfer of property held by the former highway authority in its capacity as such was simply the quid pro quo for that relief from responsibility.
(5) The appellant had submitted that there should be a strong presumption that all rights in the vertical plane as were in fact vested in the former highway authority on the operative date were vested in it in that capacity. However, there was no good reason why any such presumption or burden of proof should be identified as flowing from the true interpretation of article 2.
Timothy Morshead QC and Charles Banner (instructed by Gowling WLG (UK) LLP, of Birmingham) appeared for the appellant; David Elvin QC and Richard Moules (instructed by Dentons UK and Middle East LLP) appeared for the respondents.
Eileen O’Grady, barrister
