A Reminder of the extent of a highway
The recent Court of Appeal decision in Southwark LBC v Transport for London provides a useful reminder of the vertical extent of a highway authority's legal interest in an adopted highway.
The case involved a dispute between Transport for London ("TFL") and LB Southwark and the City of London ("the Councils") regarding the effect of an Order that transferred responsibility for maintaining certain highways designated as Greater London Authority Roads ("GLA Roads") from the Councils to TFL. The issue was whether ownership of the entire land and subsoil beneath the GLA Roads was also transferred or just the roads' surface and foundations.
The term highway is not comprehensively defined in legislation. Instead the common law meaning of: "a way over which the public have the right to pass and repass" is used. A highway is therefore an intangible legal right rather than a physical feature.
Highway authorities are under a duty to assert and protect the public's right over all highways and keep them free from obstruction.
This is distinct from maintenance. Highways may be maintained at the public expense, privately, or by no one.
If maintainable at the public expense, s263 of the Highways Act 1980 provides that they vest in the highway authority.
Southwark reminds us of the long-line of case law which confirms that it is only the surface and a sufficient depth below the surface necessary to its use as a highway (famously referred to by Lord Denning as the "top-two spits") that vests in the relevant highway authority. The vertical depth is not fixed and varies according to each highway and what is required by the highway authority to discharge its duties. A gravel footpath may simply extend down a few inches whilst a major road could extend to a couple of feet. Similarly, the highway authority also acquires an interest in the air space immediately above the surface of the highway that is required for public passage.
The highway authority's legal interest does not affect the ownership of the subsoil beneath the vested highway.
This is important because if highway rights are extinguished, ownership of the surface reverts back to the owner of the subsoil.
But who is the owner of the subsoil? Where land is acquired by a highway authority to construct a road the highway authority is likely to be the owner of both surface and subsoil.
If a highway is created through dedication and acceptance the highway authority will only acquire a legal interest in the surface and the "top-two spits" if the highway is adopted as maintainable at the public expense and becomes vested in the highway authority.
Where the land is registered at the Land Registry the registered freehold owner will remain as the owner of the subsoil.
However, much of the land over which highways pass is unregistered. In such cases there is a rebuttable presumption that if someone owns land adjacent to the highway they will own the subsoil beneath the surface of the highway and the air space above the surface in excess of what is required for public passage up to the middle of the highway.
The Land Registry does not generally record such highway subsoil ownership. Furthermore, the presumption can be displaced if there is evidence that the rule does not apply, such as the subsoil being specifically excluded from the ownership of the adjoining land.
Vesting and ownership of the subsoil is especially important where highway rights are extinguished to enable implementation of planning permission. Upon extinguishment, ownership of the surface will revert back to the owner of the subsoil. The owner of the adjoining land will not need to purchase the land if it can be shown that they already own the land by operation of the presumption. Every case must be considered carefully on its own facts.