Supreme Court Finds That There Is No Fixed Common Law Meaning Of 'Highway'

The Supreme Court handed down judgment today in London Borough of Southwark and another v Transport for London [2018] UKSC 63 - finding that that there is no clear and consistent meaning of 'highway' in common law. Rather, the meaning of 'highway' depends on the context in which it is used, so its meaning can change in different statutes and even different provisions within statutes.

The Court also preferred the term 'zone of ordinary use' in place of the widely-used 'top 2 spits' to indicate an extent of highway ownership.

The Court considered the use of 'highway' in the GLA Roads and Side Roads (Transfer of Property etc) Order 2000 (SI 2000/1552) ("the Transfer Order"). The Transfer Order provided for the transfer from local highway authorities to TfL of specified property and liabilities relating to highways designated as GLA roads.

There was a dispute as to what land transferred to TfL by virtue of the Transfer Order. Central to the dispute was what was meant by 'highway'.

The Appeal

Transport for London ("TfL") brought the appeal to determine the vertical extent of land transferring to it under the Transfer Order.

The key part of the Transfer Order was paragraph (1)(a) of article 2, which stated that land to be transferred to TfL was:

"the highway, in so far as it is vested in the former highway authority."

The meaning of "highway" in the context of the Transfer Order was therefore crucial.

The Land Transferred - What is 'Highway'?

London Borough of Southwark and City of London ('the Councils') argued that the only part of the land transferred on the vertical plane was the part understood to be 'highway' at common law - i.e. the surface insofar as necessary for use and maintenance (known as the 'necessary land'), together with the top 2 spits of subsoil. The Councils argued that this common law meaning of 'highway' had been settled some time ago. Therefore, only that limited vertical slice should pass to TfL by the Transfer Order and not any greater airspace or subsoil.

In contrast, TfL argued that, as with conveyances of land generally, the transferee acquires not only the surface of land itself, but the full extent of the vertical plane (both airspace above it and ground below). As the purpose of the Transfer Order was to pass to TfL the rights held by the Councils in their capacity as highway authority, the whole interest had to pass to TfL - there was no fixed common law meaning of 'highway' that should limit the vertical extent of...