Highways – Transport for London – Vesting order – Arbitrator determining preliminary questions concerning vesting of highways in defendant Transport for London – Arbitrator deciding preliminary issues relating to extent of vesting order – Claimant local authority appealing against decision – Whether under vesting order defendant taking surface of highway or whole of freehold vertically and horizontally – Appeal dismissed
The claimant local authority appealed against an award of an arbitrator on preliminary issues raised in two similar arbitrations under the GLA Roads and Side Roads (Transfer of Property etc) Order 2000 (SI 2000/1552). That order provided for the vesting of certain highway property in the defendant in connection with the re-ordering of responsibilities for highways on the creation of the defendant 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 claimants and the City of London were highway authorities for what were now Greater London Authority (GLA) roads in their respective areas. The order was intended to have some vesting effect in relation to those roads and the dispute was as to its extent. In some parts of the highways, the local authorities owned not merely the top part of the soil, but had full title to the whole of the freehold. The relevant dispute was as to whether, in those circumstances, the defendant acquired any more than the relevant part of the surface that it would normally have as a highways authority.
The vesting order provided for disputes between the defendant and highway authorities to be determined by arbitration, in the course of which the arbitrator made an award concerning preliminary issues. The claimants appealed against the arbitrator’s ruling that held that the order vested the whole of the freehold in the defendant, if the local authority had had it before the vesting date, unless something had happened to divorce the surface from the subsoil and airspace in terms of the purpose for which the land was held.
The essence of the dispute was whether, under the vesting order, the defendant took merely the surface of the roads or the whole of the freehold, vertically and horizontally. The claimants relied on the fact that the vesting order used the word “highway” defined in section 263 of the Highways Act 1980 in a limited way to mean the surface. They also relied on section 265 of the 1980 Act and what the court said in Secretary of State for the Environment, Transport and the Regions v Baylis (Gloucester) Ltd [2000] 2 EGLR 13.
Held: The appeal was dismissed.
Section 263 of the 1980 Act, which dealt with the vesting of highways maintainable at public expense, did not define what was meant by “highway”. It dealt with what part of the land vested in the highway authority when a road was maintainable at public expense, and by virtue of that obligation. In Baylis, the court had set out the basic law as to the estate which highway authorities generally got by virtue of their obligations, because the existence of some estate was relevant to the extent to which the vendor in that case was liable for not having given full title and vacant possession. The court was setting out consequences and not pronouncing on the construction of “highway” in the then equivalent of section 265. In the circumstances, Baylis did not support what was meant by “highway” in the relevant statute, and did not demonstrate that, in section 265, “highway” meant the surface and no more: Secretary of State for the Environment, Transport and the Regions v Baylis (Gloucester) Ltd [2000] 2 EGLR 13 applied. Tunbridge Wells Corporation v Baird [1896] AC 434, St Mary, Battersea, Vestry v County of London and Brush Provincial Electric Lighting Co [1899] 1 Ch 474 and Tithe Redemption Commission v Runcorn Urban District Council [1954] Ch 383 considered.
(2) In using the words in article 2(1)(a) of the Order “insofar as it is vested in the highway authority” Parliament was not only intending to convey the “no one gives what he doesn’t have” concept but was also giving an indication that it was intending to vest land held qua highway authority, whether the surface or a wider holding. In all the circumstances, the arbitrator had not erred in law in proceeding on the footing that article 2(1)(a) carried with it the freehold, or other estate, vested in the local authorities as highway authorities and, in the vertical plane, that it was not confined to the surface. There was no attack on his precise formulation of the answer regarding the vertical plane.
(3) In terms of the horizontal scope of article 2(1)(a), it had to extend to what was properly called the highway, but not into land that could not properly be called the highway. On the wording of the article, there was no case for engrafting a further requirement of necessity or reasonable requirement. Nor was it possible to detect any underlying purpose that would justify such an implication. Such a requirement would probably be inimical to the overall purpose. Furthermore, it would be a very difficult test to apply in many case.
David Elvin QC and Richard Moules (instructed by Dentons LLP) appeared for the claimants; Timothy Morshead QC and Charles Banner (instructed by Wragge Lawrence Graham & Co LLP) appeared for the defendant.
Eileen O’Grady, barrister
Click here to read the transcript of Southwark London Borough Council v Transport for London
