Where land forms part of a highway, its surface is dedicated to public use. Section 263(1) of the Housing Act 1980, which is based on statutory provisions dating back to 1835, provides that: “Every highway maintainable at the public expense, together with the materials and scrapings of it, vests in the authority who are for the time being the highway authority for the highway.”
The area that vests in the highway authority includes, not merely the surface but an appropriate part of the soil beneath. However, a person can own or acquire an interest in the land below that; in some towns and cities, buildings have cellars that extend beneath under the road.
Where land forms part of a highway, its surface is dedicated to public use. Section 263(1) of the Housing Act 1980, which is based on statutory provisions dating back to 1835, provides that: “Every highway maintainable at the public expense, together with the materials and scrapings of it, vests in the authority who are for the time being the highway authority for the highway.”
The area that vests in the highway authority includes, not merely the surface but an appropriate part of the soil beneath. However, a person can own or acquire an interest in the land below that; in some towns and cities, buildings have cellars that extend beneath under the road.
In addition, the statutory vesting is not permanent; it is conterminous with the life of the highway and will end if the highway is diverted or stopped up or extinguished in some other way. Is it possible, therefore, for a squatter to acquire title to land forming part of a highway, despite the existence of public rights of passage across the land?
R (on the application of Smith) v Land Registry [2010] EWCA Civ 200; [2010] PLSCS 75 confirms that adverse possession by a squatter and exclusion of, or disuse by, the public does not extinguish, release or diminish public rights over a highway or rule out their resumption. Consequently, the Land Registry is entitled to reject applications for registration by squatters where the land that they are applying to register forms part of a highway.
Interestingly, the members of the judiciary who have dealt with this case have reached the same conclusion, but for different reasons. The judge at first instance based his decision on the illegality of the squatter’s occupation of the highway. The Court of Appeal analysed the issues differently but agreed that the squatter was not entitled to be registered with title to the highway verge on which he had parked his caravan for more than 12 years.
Their lordships ruled that the provisions of the Limitation Act 1980 enable squatters to dispossess landowners of title to land. However, none of the cases cited to the court supported the proposition that public rights of way are extinguished as a result of the expiry of the statutory limitation period, which does not apply whatever to public of rights of way.
Highways are a shared resource and the public is entitled to use them in perpetuity (except in those limited cases where parliament has provided otherwise). The public is an ever-changing class, and the right to use a highway cannot be terminated by action that affects some members of the public since the right belongs to all. Therefore, squatters cannot extinguish public rights of passage through adverse possession of the surface of a highway.
The decision confirms that there is a great deal of truth in the maxim “once a highway always a highway”. Consequently, practitioners would be well advised to consider whether land is subject to public rights of way before submitting applications for registration on behalf of squatters.
Allyson Colby is a property law consultant
