Ownership Rights of a Highway Authority

December 3rd, 2015 by James Goudie KC

What one might call the “normal” or “traditional” ownership rights of a highway authority lay at the heart of the dispute in Southwark LBC v Transport for London [2015] EWHC 3448 (Ch).  A Vesting Order, SI 2000 No 1152, provided for the vesting of certain highway property in TfL, in connection with the re-ordering of responsibilities for highways in the creation of TfL and its assumption of responsibility as a highway authority for certain roads in Greater London. The Order, by Article 2(1)(a), provided broadly that there were thereby transferred to TfL in relation to each GLA road “the highway, in so far as it is vested in the former highway authority”.

The dispute was as to the extent of the vesting by virtue of the expression “the highway”. Southwark LBC and The City of London were highway authorities for what are now GLA roads in their respective areas. The Vesting Order was obviously intended to have some vesting effect in relation to those roads.  The dispute was as to its extent. In the case of some parts of some of the highways the local authorities owned not merely the top part of the soil, but have full title to the whole of the freehold. The relevant dispute was as to whether, in those circumstances, TfL acquired any more than the relevant part of the surface that it would normally have as a highway authority.

Mann J observed (para 5) that it is well established where a highway is maintainable at public expense the highway authority which is responsible for it has not merely the obligation to maintain it, it also has a limited ownership (unless it has acquired ownership rights by conveyance).  That principle is set out in statute and in authority. He referred to the current statutory provision (which succeeds others) i.e. Section 263 of the Highways Act 1980, which provides, broadly, 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.

Mann J concluded (paragraph 54):-

“In all the circumstances I do not consider that the arbitrator 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 what I am calling the surface. …”

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