KBC Developments LLP v Wavin Ltd and another

Highways – Adoption – Highways Act 1980 – Claimant owning land with permission to build bridge over railway line which ran across defendant’s land – Dispute arising concerning narrow strip of land – Whether claimant entitled to declaration that strip of land adopted by second defendant as public highway – Whether defendant retaining ownership of strip – Claim allowed The defendant owned a small strip of land on the north-west side of the Great Western railway line to the east of Chippenham station. The land to the south-east of the railway was owned by the claimant which had planning permission granted in 1990 to build a bridge over the railway line to connect to a road known as Parsonage Way which ran across the first defendant’s land towards the railway. Just before it reached the boundary with the railway, there was a “hammerhead” feature comprising three elements: (i) a tarmacadamed area (the tarmac hammerhead); (ii) the verge down the embankment towards the boundary with the railway (the verge); and (iii) a narrow strip of level land between the verge and the embankment down to the boundary with the railway (the level strip). While all those features sat on the first defendant’s land, it was common ground that Parsonage Way, including both the tarmac hammerhead and the verge, had been adopted as a public highway, and so vested in the second defendant local authority. A dispute arose concerning the level strip. The claimant contended that the level strip formed part of land which had been adopted as a public highway in 1992, pursuant to section 38 of the Highways Act 1980. Therefore, it sought a declaration that it was entitled, with the agreement of the second defendant, to build the proposed bridge over the railway. The first defendant’s principal contention was that the level strip remained in its ownership and formed a ransom strip. Held: The claim was allowed. (1) At common law, for a way to become a public highway it needed to be dedicated as such, which involved both an intention by the landowner to dedicate land as highway, and acceptance by it as a highway by the public: Secretary of State for the Environment, Transport and the Regions v Baylis (Gloucester) Ltd [2000] 2 EGLR 13 applied. Section 38 of the 1980 Act provided a statutory mechanism for such dedication and acceptance via an agreement with the relevant highway authority. An agreement under that section might contain provisions as to the dedication as a highway of any road or way to which the agreement related, the bearing of the expenses of the construction, maintenance or improvement of any highway, road, bridge or viaduct to which the agreement related and other relevant matters as the authority making the agreement thought fit. Once adopted, the highway vested in the council, as the relevant highway authority under section 263 of the 1980 Act: R (on the application of Redrow Homes Ltd) v Knowsley Metropolitan Borough Council: [2015] EGLR 6 applied. (2) There was no single meaning of highway, but in non-technical language it meant a way over which the public had rights of passage, whether on foot, horseback or in or on vehicles. The extent of the way to which an agreement under section 38(3) related, and thus adopted as a highway, was ascertained in the horizontal plane by reference to the terms of the particular agreement. Whether the way was to be adopted pursuant to section 38(3)(a) or (b), it could include areas other than the path or road itself, including those upon which no actual construction was to take place, for example verges. The extent to which such areas were included in the highway adopted under section 38 also depended on the true interpretation of the agreement: Southwark London Borough Council v Transport for London [2019] EGLR 9 applied. (3) Since the purpose of a section 38 agreement was to identify the extent of land which was adopted as a public highway, and a highway would commonly include land on which no physical work was undertaken, there was no reason why the extent of works for which prior planning permission had been given should dictate the extent of land which was adopted pursuant to a section 38 agreement. Such an agreement contained within itself the machinery for identifying with precision what was to be adopted. The agreement did not limit the property to be adopted pursuant to section 38 to that which was the subject matter of the 1990 planning permission. There was nothing in section 38 which precluded an agreement being reached with the council for adoption of land, on which something was to be constructed, notwithstanding that no planning permission had been obtained for that work. The tarmac hammerhead and the verge associated with it had no discernible purpose other than as the commencement of the possible future extension over the railway line and the point of connection with that extension. The fact that until the bridge was built, there was nowhere for that extension to go did not prevent it being adopted as highway, and it was common ground that it was so adopted. The adoption plan unambiguously identified the whole of the hammerhead area, including the level strip, as that which was adopted as a highway under the section 38 agreement. (4) The level strip was adopted together with the tarmac hammerhead and the verge because it was to be regarded as one of a piece with them. It was part of that which was adopted as a highway that, at present, went nowhere but whose purpose was to form the connecting point with the proposed extension and bridge if and when they were built. The envisaged use of the level strip was clearly not as a way upon which people would pass on foot and the zone of its ordinary use in the vertical plane could not sensibly be considered in that context. It was beyond dispute that the zone of ordinary use of the level strip included such of the airspace above it and (if relevant) the ground beneath it as would enable the proposed extension to be built. Accordingly, the claimant was entitled to a declaration that there was no gap between Parsonage Way and the legal boundary between the defendant’s land and the railway and the claimant might therefore connect the proposed railway bridge to Parsonage Way. Timothy Morshead KC and Ruth Stockley (instructed by Howes Percival LLP) for the claimant; Douglas Edwards KC and Philip Petchey (instructed by DWF Law LLP) for the first defendant; Paul Brown KC (instructed by Wiltshire Council) for the second defendant. Eileen O’Grady, barrister Click here to read the transcript of KBC Developments LLP v Wavin Ltd and another